The role that members of Congress may have played in facilitating the deadly attack attracted a lot of attention this week after Democratic lawmakers claimed that some of their Republican colleagues facilitated visits to the Capitol on January 5 – the day before protesters became involved in the attack. that terrorized lawmakers, ransacked Congressional offices and left up to five people dead.
MP Mikie Sherrill (DN.J.) sent a letter on Wednesday formally asking the Capitol Police and Congressional officials to investigate the trips, which she said were unusual. In a Facebook video, she said the visits represented “an acknowledgment of the next day”.
“The tours carried out on Tuesday, January 5, were noticeable and worrying in relation to the procedures in force in March 2020, which limited the number of visitors to the Capitol,” wrote Sherrill and 33 colleagues. “Visitors found by some of the members of Congress in this letter appeared to be associated with the White House rally the next day.”
Sherrill suggested that access increased the chance that visitors would be investigating the building for the next day’s attack.
“The members of the group that attacked the Capitol seemed to have an exceptionally detailed knowledge of the layout of the Capitol Complex,” she wrote. “Given the events of January 6, the ties between these groups within the Capitol Complex and the attacks on the Capitol need to be investigated.”
Justice Department officials said they were looking for “all the actors” who were involved in the Capitol rebellion. The FBI also asked the public to reveal evidence about those who “instigated” the violence.
Asked whether the investigation includes potentially complicit lawmakers, a Justice Department spokesman referred questions to the FBI, which did not respond to a request for comment.
The main organizer of Stop the Steal, one of the groups behind the January 6 protests that culminated in a violent attack on the Capitol, said he was working with several Republican members of the House to organize the event. But it remains to be seen whether any coordination before last week’s rally extends to complicity in taking Congress.
Democrats have come up with a number of potential ways to punish Republican lawmakers who may be involved in both fomenting and directing the mutiny – from the Congressional investigation to criminal sanctions.
“I hope we understand if there was an inside job – whether members or employees or anyone working on Capitol that helped these invaders to navigate the Capitol better – that will be investigated,” Rep. Eric Swalwell (D-Calif.) Said Wednesday at MSNBC. Swalwell also called specific Republican lawmakers on Twitter, such as Congresswoman Lauren Boebert (R-Col.), For appearing to reveal the movements of House Speaker Nancy Pelosi during the attack.
“To hell with the Ethics Committee, these people need to be indicted criminally,” said deputy Sean Patrick Maloney (DN.Y.) on the same network.
The question came up during the historic debate on impeachment in the House plenary, where Deputy Cedric Richmond (D-La.) Said that some of his colleagues “may well be co-conspirators”.
Lawyers with experience in complex criminal cases said anyone who helped protesters inspect Capitol could face serious charges.
“It’s very serious,” said former federal prosecutor Harry Litman. “It is like giving troop movements to the enemy.”
Litman said he expects investigators to scan emails and text messages for indications that someone working on Capitol is coordinating with the conspirators. According to the principles of criminal law, even those with lesser functions can be held responsible for the worst crimes of disorderly people.
“Talking to them is really conspiracy territory, which means that you are potentially on the hook for everything that is reasonably predictable and, knowing this cast of characters, it seems to me that everything from trespassing to the use of weapons and devices arsonists is reasonably predictable, ”Litman said. “If the evidence proves it, they could be subject to everything, even a seditious conspiracy.”
Machen said more evidence needed to be developed, but there was evidence of a possible case to help and incite troublemakers.
“If a member of Congress led the rebels around the Capitol the day before the attack and there was convincing evidence of complicity in the violation, if members of Congress were actively helping and inciting people trying to break into the Capitol and interrupt electoral certification, this is really as close to being at the center of a seditious conspiracy charge as you might expect to find, ”said the former US attorney.
Some lawyers said that impassioned speeches by President Donald Trump, Trump’s lawyer, Rudy Giuliani and Deputy Mo Brooks (R-Ala.) To the crowd that joined the riot shortly afterwards, can be protected by the First Amendment. Fiery speeches are not uncommon at political events and making speakers responsible for all actions taken by audience members can cool public debate, scholars argue.
But former prosecutors say any criminal prosecution against Trump or lawmakers would not be based solely on speeches, but on other public and private communications – emails and texts exchanged with organizers and supporters in the days leading up to the rally and the day of the attack. shocking. Investigators will be looking for a discussion of a physical attack on the Capitol building and for indications that individual members were specifically targeted.
Several experienced attorneys noted that any lawsuits against political actors would be filed in Washington and that a local jury is unlikely to sympathize with claims that the speakers were being picturesque and not criminal.
“I don’t think a jury would find it very convincing. And these cases will be tried in DC and the jury will not believe that ”, said Zeidenberg.
Congressional investigations face special challenges. Lawmakers may try to use the Constitution’s speech or debate clause, which gives limited immunity to members of the House and senators, to prevent investigators from accessing communications related to their official functions.
In 2007, the DC Circuit Court of Appeals strongly criticized prosecutors for their handling of a search of Rep. William Jefferson’s office (D-La.) As part of a corruption investigation. The judges said that members of Congress have the right to be given advance notice of such a search and to review any material that investigators seek to seize.
However, Zeidenberg said he was confident that these obstacles could be overcome. “There is no speech or debate clause covering text messages with constituents about breaking into the Capitol,” he said.
With the number of individuals facing charges now over 70 and still increasing, investigators may also not need to obtain communications from lawmakers or their offices in the first instance, but they may obtain them from email accounts and devices from alleged protesters.
“The first people to cooperate receive the best treatment,” said Joyce Vance, a former US attorney in Alabama. “After identifying the people who have entered, they will want to hand over what they have because they have nothing to hide or because they want an agreement, so it shouldn’t be too difficult to get those communications.”
Some lawyers said the key issue may not be whether a jury would convict, but whether Justice Department officials – including Biden’s attorney general, Merrick Garland – decide that the evidence of collaboration is strong enough to overcome concerns about intrusion into the usual robust protections for freedom of expression.
“It is a big buffer for political speech and that would be a big part of the things that Garland would have to look at, but this is unlike anything I have ever seen from a political leader,” Litman said of Trump’s speech at the rally. “It is a stronger case than the classic cases in which the courts opted for the political discourse in the equation.”
In his speech before the attack, Trump urged his followers to “fight like hell”. However, Vance said that charging the president or ex-president based solely on his comments at the rally would be challenging.
“They are susceptible, alone, to an interpretation that they are hyperbolic,” she said. “It is really the course of conduct that you need enough to prove your intention to incite. … This is a difficult question and I am not sure if it is a realistic expectation that the President of the United States will be indicted for sedition in the absence of a real smoking weapon. ”