In a lawful society, in which our laws were administered fairly to all, the armed terrorists who shook the nation, attempted an insurrection, and forcibly occupied our Capitol would be thrown in jail for decades.
Specifically, these terrorists (they are not protesters; they are not rioters; they are terrorists, insurrectionists, and traitors) have violated the following federal laws:
- 18 U.S.C. § 2385. Seditious Conspiracy. If “two or more people… conspire… by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof,” penalties are fines and twenty years imprisonment.
- 18 U.S.C. § 1361. Destruction of Government Property. If the damage exceeds $100, penalties are fines up to $250,000 and ten years imprisonment.
- 18 U.S.C. § 111. Assaulting Federal Officers. Fines vary, 20 years imprisonment.
- 18 U.S.C. § 351. Assault on Members of Congress. One year imprisonment.
- 41 CFR 102-74.380. Creating a Hazard on Federal Property. Penalties vary.
- 36 CFR 2.34 (and elsewhere). Disorderly Conduct. 90 days imprisonment, $300 fine.
Will any of those charges be filed? Will the smiling, white, unmasked faces of these thieves—stealing podiums, breaking into offices, smashing windows—be identified, and will the thieves be prosecuted?
Or will the charging of these terrorists be as lax as the policing of them? After all, just compare the phalanxes of riot police who greeted peaceful Black Lives Matter protesters with the few and outgunned DC Metro Police holding back tides of armed, violent insurrectionists. As BLM activist Deray McKesson put it, “without being dramatic, they would've literally shot us Black folks if we had BROKEN INTO the Capitol building in an attempt to STORM THE SENATE CHAMBER.”
Cops ran over peaceful BLM protesters near my home in Brooklyn. With a mob running amok in our Capitol, they literally took selfies.
If there’s any justice, the decisions on how to prosecute these traitors may ultimately land on the desk of our next attorney general, Merrick Garland. Garland prosecuted Timothy McVeigh, among others, and is intimately familiar with going after white nationalist terrorists. He’d be the perfect top cop for this beat.
Then again, charges may be pursued, or dropped, which means it will be up to the discretion of the Trump Department of Justice, the same folks who managed not to protect the Capitol in the first place. Or maybe Trump will just pardon them all prospectively.
By way of comparison, consider the great obsession of Fox News and the Republican Party: antifa.
On July 7, the Department of Homeland Security arrested seven antifa activists for their actions in Portland, Oregon, during the previous week. One was “accused of willfully destroying a closed-circuit video camera.” Another was “accused of using his body to push on and hold a glass door at the Hatfield Courthouse closed, preventing officers from exiting the building and causing the door to shatter.”
The government threw the book at them then. Will it do that to pro-Trump terrorists now?
It would be nice if there were consequences for the politicians who incited this violence, including Trump, Rudy “Trial By Combat” Giuliani, and Senator Josh Hawley (R-MO), whose raised fist to the protesters about to storm the capital was, of course, merely an innocent gesture of support, since his fist is lily-white, after all.
But before we go reaching for our Sedition Acts, let’s remember that there’s always a balance between prosecuting incitement to violence and protecting free speech. And Donald Trump is nothing if not a good weasel. “Fight for me!” can mean a lot of things, not necessarily throwing chairs through the windows of the Capitol and prancing around like a bunch of drunk fratboys in the House chamber.
And though Giuliani is not as good a weasel, I’m not sure “trial by combat”—which, you know, actually refers to gladiators and characters of Game of Thrones—really counts as incitement to riot either.
So, no, the real recourse against the ringleaders of this travesty, half tragedy and half farce, will have to come from elsewhere. Perhaps it will come from the moments of self-reflection by the Republican members of Congress who finally recognized that inciting mobs is a bad idea once the mobs reached the doors of their very offices.
Maybe it’ll come in church, as the Rick Santorums of the world actually wonder if they’ve been in league with the sinners rather than the saints. Maybe it will come from decent people of all ideological stripes realizing that there are not “two sides” of “extremism” and “polarization” but one noxious right-wing nationalist terror that must be uprooted, smashed, and destroyed for our country to survive.
Perhaps, at least the perpetrators of this violence can be held to account, even if only for destruction of property, even if only for disorderly conduct. At least something to show the rest of America, and the world, that there is some law and order left. Perhaps we can derive comfort from that, even if their puppeteers in the Oval Office and Fox News get off scot-free again.
Or maybe justice won’t come at all.