What's in store for rioters in Capitol attack? Experts weigh in

As federal investigators begin culling through thousands of hours of video and social media posts to identify the people responsible for Wednesday’s attack on the Capitol, many Americans wonder what justice will look like.

Will it mean filing charges against every single individual involved in the violent clash that made its way into the halls of Congress during the certification of Joe Biden’s presidential victory? Or will it mean ignoring some of the illegal conduct to try to encourage healing and progress?

Experts differ on the extent prosecutions should go, but agree the work will be time-consuming and arduous.

As of Friday afternoon, officials said 13 people had been charged in federal court, and another 40 had been charged in D.C. Superior Court. Among them was a man who posted a picture of himself on social media sitting at a desk with his feet up in House Speaker Nancy Pelosi’s office and a delegate in the West Virginia legislature who recorded himself storming the Capitol.

Shortly after the siege, the FBI announced that it was seeking help in identifying the people who were “actively instigating violence” in Washington, D.C. It promoted its tip line and urged people to call if they had information, video, images or other evidence.

“The violence and destruction of property at the U.S. Capitol building showed a blatant and appalling disregard for our institutions of government and the orderly administration of the democratic process,” said FBI Director Christopher Wray. “As we’ve said consistently, we do not tolerate violent agitators and extremists who use the guise of First Amendment-protected activity to incite violence and wreak havoc.”

BREAKING: West Virginia lawmaker Derrick Evans, who livestreamed himself entering the U.S. Capitol, has been arrested by the FBI pic.twitter.com/uXvl9lnLoM

— BNO News (@BNONews) January 8, 2021

“[W]e will continue to methodically assess evidence, charge crimes and make arrests in the coming days and weeks to ensure that those responsible are held accountable under the law,” said Acting Attorney General Jeffrey Rosen.

Neither Wray nor Rosen said with any specificity what charges might be filed, but there’s a range that starts at trespass and rises to seditious conspiracy. In between, there is resisting arrest, entering a restricted building or grounds, destruction of government property, assault on federal law enforcement officers and inciting a riot.

“The charges here are extremely serious and will land people in prison for a long period of time,” said former federal prosecutor Bruce Antkowiak, who now teaches at Saint Vincent College.

Harry Litman, a former U.S. attorney for the Western District of Pennsylvania, said he expects a task force will be set up to coordinate the prosecutions which fall under multiple law enforcement jurisdictions.

The attack, Litman said, was on the physical and ideological symbol of American’s democracy — anyone who entered the Capitol on Wednesday should be charged.

“Nothing can justify this conduct,” said Litman, who also served in the Justice Department in the 1990s. “It’s not just a message. It’s pure, societal retribution. It was a completely dark, harrowing day, and the government must respond.”

“There’s an incredible federal interest we’re talking about.”

Anyone who took any weapons or incendiary devices inside, Litman said, should face terrorism charges. Others should be charged with trespassing.

The bigger question, he said, is whether to pursue charges against President Trump.

There would be good reason, Litman said, to “try to clean off the Trump era” and just let it end.

“But I don’t see how you do that. He incited an insurrection — can you really just give that a pass? But if you don’t, what a hornet’s nest you’re stepping in to indict a president of seditious conspiracy.”

That charge, according to the federal statute, is when two or more people conspire to “overthrow, put down, or to destroy by force the government of the United States.”

Litman said that count could apply to Trump and would only require an agreement with others — like, for example, attorney Rudy Giuliani and Donald Trump Jr. — serving as Trump’s co-conspirators.

The charge of insurrection could also apply, Litman said, and would not require a conspiracy. If Trump were convicted of that, he would not be able to hold future political office.

“I think it’s very hard to charge Trump and very hard not to,” he said.

Sherwin said on Thursday in a phone call with reporters that Trump is not off-limits.

“[W]e are looking at all actors here, not only the people that went into the building, but … were there others that maybe assisted or facilitated or played some ancillary role in this,” Sherwin said on the call, the Washington Post reported. “We will look at every actor and all criminal charges.”

“We are looking at all actors here, and anyone that had a role, if the evidence fits the element of a crime, they’re going to be charged.”

The law is unsettled as to whether a president can pardon himself, Litman said. But Trump could pardon his supporters who get charged, Litman said. Typically, though, that can’t occur without having their names and charges.

And those, Litman said, won’t likely be available until President-Elect Joe Biden is in office.

“The new DOJ will handle this,” he said.

Antkowiak said he would be stunned if Trump tried to provide amnesty or pardons across the board to everyone charged in Wednesday’s attack.

“There is simply no justification for the kind of destructive activity that occurred there,” he said. “No one has come out and said ‘yes, violent activity like that is OK if you have a good enough reason.’ ”

As for how the investigation will unfold, Litman said he expects it to be time-consuming but not hard.

“The protesters did a favor by going right in and taking selfies,” he said.

Litman called the people who attacked the Capitol “unsophisticated,” and said it was a mix of “buffoonery, deep malice and two-bit hoodishness.”

Shawn Brokos, a retired supervisory special agent with the FBI, said that the coordinated law enforcement effort will focus on identifying those who organized the attack.

“It’s not the one-offs,” she said, referring to those who went to the Capitol on their own. “They’re looking to identify individuals who are known to them and part of organized groups.”

The FBI refers to them, Brokos said, as “accelerationists.”

“Their goal is disruption and chaos and inciting violence.”

What they did, she said, is domestic terrorism.

University of Pittsburgh law professor David A. Harris said that it “is incitement to riot at the very least. A good case can be made that this is seditious treason.

“The strongest cases of punishment and prosecution should be brought against those who encouraged this mob on Wednesday to take the law into their own hands,” he said.

While Harris and Litman believe everyone involved ought to be charged, Antokowiak said that, first, there are practical considerations.

“Before you ask the philosophical question of how many people ought to be prosecuted and for what reason, you have to [look at] the capacity of the court system,” he said. “Trying to prosecute as many as possible would create a logistical nightmare.”

Instead, Antkowiak said, a prosecutor’s first instinct is to go after individuals who caused or threatened violence to other people.

“That’s your first priority,” he said.

Then, next would be those who caused serious property destruction. That federal count, Antkowiak said, is substantial and can carry with it up to 10 years in prison.

“Then scale down from there,” he said.

But Harris believes that everyone involved in the attack can and should be prosecuted.

“Whether the crimes prosecuted involve vandalism, failure to obey a police order, incitement to riot, or even just curfew violations, it is important that every person involved be held accountable,” Harris said. “This does not involve speech, because the actions of invading this building, making threats, damaging property or attempting to get others to commit crimes are not based on viewpoints.

“These are crimes. And unless the idea that one can commit these crimes because one does not like the outcome of the election is fully rooted out, this will not be the last time we see this. It will be one in a succession of many.”