The role that members of Congress may have played in facilitating the deadly attack attracted intense attention this week after Democratic lawmakers claimed that some of their Republican colleagues facilitated tours of the Capitol on January 5 – one day before protesters held with the assault that lawmakers were terrorized and looted. congress offices and left up to five people dead.
Rep.Mikie Sherrill (DN.J.) sent a letter on Wednesday asking Capitol police and congressional officials to investigate the tours, which she said were unusual. In a Facebook video, she said the visits amounted to an ‘exploration of the next day’.
“The tours that took place on Tuesday, January 5, were conspicuous and deviated from the procedures instituted from March 2020, which limited the number of visitors to the Capitol,” Sherrill and 33 colleagues wrote. “The visitors that some members of Congress encountered in this letter appear to be associated the next day with the protest in the White House.”
Sherrill suggested that access create the possibility that visitors envelop the building for the assault that took place the next day.
“Members of the group that attacked the Capitol seem to have an extremely 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 must be investigated.”
Justice Department officials said they were looking for “all actors” involved in the Capitol riot. The FBI also appealed to the public to pass on evidence to those who incited ‘violence’.
Asked if the investigation might include complicit lawmakers, a Justice Department spokesman referred questions to the FBI, which did not respond to a request for comment.
The chief organizer of Stop the Steal, one of the groups behind the Jan. 6 protests that ended in a violent assault on the Capitol, claims he collaborated with several Republican members of the House to organize the event. But it remains to be seen whether any coordination before last week’s protests extends to the knowledge of the storms of Congress.
Democrats have raised several possible means to punish GOP lawmakers who may have been involved in the riot or leading the riot – from congressional investigations to criminal sanctions.
“I hope we understand if there was an internal job – whether it was members or staff or someone at the Capitol who helped these attackers navigate the Capitol better – it will be investigated,” Rep. Eric Swalwell (D-Calif.)) Said on MSNBC on Wednesday. Swalwell also called on specific GOP legislators on Twitter, such as Representative Lauren Boebert (R-Col.) Because they apparently disclosed the movements of the House, Nancy Pelosi, during the attack.
“To hell with the Ethics Committee, these people should be prosecuted,” Sean Patrick Maloney (DN.Y.) said on the same network.
The case even arose during the historic accusation debate on the House floor, where Representative Cedric Richmond (D-La.) Said that some of his colleagues could possibly be co-conspirators.
Lawyers with experience in prosecuting complex criminal cases said anyone who helped the rioters investigate the Capitol could face serious charges.
“It’s deadly serious,” said former federal prosecutor Harry Litman. “It’s like giving troop movements to the enemy.”
Litman said he expects investigators to flip through emails and text messages and is looking for indications that anyone working at the Capitol is coordinating with the plots. Under criminal law principles, even those with minor roles can be held accountable for the worst offenses of the rioters.
‘Talking to them through it is really a conspiracy area, it means you could potentially be put on the hook for anything reasonably foreseeable, and if you know this role characters, it seems to me everything, from offense to the use of weapons to fire extinguishers, is quite foreseeable. , ”Litman said. “If the evidence proves it, they can have the hook for everything to a riotous conspiracy.”
Machen said more evidence needs to be developed, but there are hints about the possibility of helping the rioters.
‘If a member of Congress led the insurgents through the Capitol the day before the attack and there was compelling evidence of complicity in the offense, the members of Congress would actively help people and try to storm the Capitol and the election certificate ‘then it’s really as close to the core of an inciting conspiracy charge as you could find,’ the former U.S. attorney said.
Some lawyers have said that outrageous speeches by President Donald Trump, Trump lawyer Rudy Giuliani and Rep. Mo Brooks (R-Ala.) To the crowd that joined the riot a short time later could possibly be protected by the First Amendment . Fiery speeches are not uncommon during political events, and making speakers responsible for all actions that audience members take can cool public debate, scholars argue.
Former prosecutors say, however, that any criminal case against Trump or lawmakers will be based not only on the speeches, but on other public and private communications – emails and texts exchanged with organizers and supporters in the days before the protest and on the day of the shocking attack. Investigators will be looking for discussion of a physical assault on the Capitol building and for indications that individual members were specifically targeted.
Several experienced attorneys have noted that any prosecution of political actors would be brought to Washington and that a local jury is unlikely to be sympathetic to allegations that speakers are colorful and not criminal.
‘I would guess a jury would not find it very convincing. “These cases will be heard in DC and the jury will not buy them,” Zeidenberg said.
Congressional investigations face special challenges. Legislators may try to use the Constitution’s speech or debate clause, which provides limited immunity to members of the House and senators, to prevent investigators from gaining access to their communications regarding their official duties.
In 2007, the DC Court of Appeals sharply criticized prosecutors for their handling of an investigation into the office of Representative William Jefferson (D-La.) As part of a corruption case. The judges said members of Congress were entitled to give prior notice of such a search and to investigate materials that investigators wanted to use.
However, Zeidenberg said he was confident the obstacles could be overcome. “There is no speech or debate clause covering text messages with voters about the Capitol burglary,” he said.
Because the number of individuals now facing more than 70 charges is still rising, investigators in the first instance may not need to get communication from lawmakers or their offices, but they can get it from the email accounts and devices of alleged get rioters.
“The first people to work together get the best treatment,” said Joyce Vance, a former U.S. attorney in Alabama. “Once they have identified 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 should not be very difficult to communicate do not get. ”
Some advocates have said that the key question may not be whether a jury will be convicted, but whether Justice Department officials – including Meriden Garland, a nominated attorney general – will decide that the evidence of cooperation is strong enough to to overcome the concern about the intrusion of the usual robust protection for freedom of speech. .
“It’s a big buffer for political speech, and it’s going to be a big part of the things Garland has to look at, but it’s like nothing I’ve seen from a political leader,” Litman said of Trump’s speech at the demonstration. “It’s a stronger case than the classic cases where the courts came down on the side of the political speech of the comparison.”
In his speech just before the attack, Trump urged his followers to “fight like hell.” However, Vance said the indictment of the president or former president would be challenging solely on the basis of his comments on the protest.
“They are susceptible, alone they stand for an interpretation that they are hyperbolic,” she said. ‘This is really the way you will need enough to encourage to encourage. … It’s hard, and I’m not sure if it’s a realistic expectation that the President of the United States of America will be charged with rioting if a smoke gun does not show up. ”