(POLITICO) – Lawmakers who interacted with the pro-Trump protesters who rioted at the Capitol last week could face criminal charges and will almost certainly come under close scrutiny in the burgeoning federal investigation into the assault, former prosecutors said.
“This is incredibly serious,” said Ron Machen, a former U.S. attorney for Washington, D.C. “Although you would need compelling evidence before charging a member of Congress with anything related to the breach of the Capitol that day, this has to be investigated.”
Unlike with the president, there’s no Justice Department policyshielding members of Congress from legal accountability while in office.
“I’d say those are potentially viable prosecutions,” added Peter Zeidenberg, another former federal prosecutor in Washington. “I’d say those guys should be worried.”
The role members of Congress may have played in facilitating the deadly attack drew intense attention this week after Democratic lawmakers alleged that some of their Republican colleagues facilitated tours of the Capitol on January 5 — one day before demonstrators engaged in the assault that terrorized lawmakers, ransacked congressional offices and left as many as five people dead.
Rep. Mikie Sherrill (D-N.J.) sent a letter Wednesday formally asking the Capitol Police and congressional officials to investigate the tours, which she said were unusual. In a Facebook video, she said the visits amounted to “a reconnaissance of the next day.”
“The tours being conducted on Tuesday, January 5, were a noticeable and concerning departure from the procedures in place as of March 2020 that limited the number of visitors to the Capitol,” Sherrill and 33 colleagues wrote. “The visitors encountered by some of the Members of Congress on this letter appeared to be associated with the rally at the White House the following day.”
Sherrill suggested that access raised the possibility that the visitors were casing the building for the assault that unfolded the next day.
“Members of the group that attacked the Capitol seemed to have an unusually detailed knowledge of the layout of the Capitol Complex,” she wrote. “Given the events of January 6, the ties between these groups inside the Capitol Complex and the attacks on the Capitol need to be investigated.”
Justice Department officials have said they are looking for “all actors” who were involved in the Capitol riot. The FBI has also called on the public to turn over evidence on those who “instigated” violence.
Asked whether the probe includes potentially complicit lawmakers, a Justice Department spokesperson 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, has claimed to be working with several Republican members of the House to organize the event. But it remains to be seen whether any coordination ahead of last week’s rally extends to complicity in the storming of Congress.
Democrats have raised several potential means for punishing GOP lawmakers who may have been involved in either fomenting or directing the riot — from congressional investigation to criminal sanction.
“I hope we understand if there was an inside job — whether it was members or staff or anyone working at the Capitol who helped these attackers better navigate the Capitol — that is going to be investigated,” Rep. Eric Swalwell (D-Calif.) said Wednesday on MSNBC. Swalwell has also called out specific GOP lawmakers on Twitter, such as Rep. Lauren Boebert (R-Colo.), for seeming to disclose House Speaker Nancy Pelosi’s movements during the attack.
“To hell with the Ethics Committee, these people need to be charged criminally,” Rep. Sean Patrick Maloney (D-N.Y.) said on the same network.
The issue even arose during the historic impeachment debate on the House floor, where Rep. Cedric Richmond (D-La.) said some of his colleagues “may well be co-conspirators.”
Lawyers with experience prosecuting complex criminal cases said that anyone who helped the rioters survey the Capitol could face grave charges.
“It’s deadly serious,” said former federal prosecutor Harry Litman. “It’s kind of like giving troop movements to the enemy.”
Litman said he expects investigators to sweep through emails and text messages, looking for indications that anyone who works at the Capitol was coordinating with the plotters. Under criminal law principles, even those with minor roles could be held liable for the worst offenses of the rioters.
“Talking it through with them is really conspiracy territory, that means you’re potentially on the hook for everything that’s reasonably foreseeable and, knowing this cast of characters it seems to me that everything from trespassing to use of weapons to incendiary devices is reasonably foreseeable,” Litman said. “If the evidence proves it, they could be on the hook for everything up to seditious conspiracy.”
Machen said more evidence needs to be developed but there are hints of a possible case for aiding and abetting the rioters.
“If a member of Congress led the insurrectionists around the Capitol the day before the attack and there was compelling evidence of complicity in the breach, if congressional members were actively aiding and abetting people trying to storm the Capitol and disrupt the electoral certification, that’s really as close to being at the heart of a seditious conspiracy charge as you could hope to find,” the ex-U.S. attorney said.
Some lawyers have said that inflammatory speeches by President Donald Trump, Trump lawyer Rudy Giuliani and Rep. Mo Brooks (R-Ala.) to the crowd that joined in the riot a short time later may 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 could chill public debate, scholars argue.
But ex-prosecutors say any criminal case against Trump or lawmakers would not be based solely on the 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 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 noted that any prosecution of political actors would be brought in Washington and that a local jury is unlikely to be sympathetic to claims that speakers were being colorful and not criminal.
“I would guess a jury would not find it very convincing. And these cases are going to be tried in D.C. and the jury isn’t going to buy this,” Zeidenberg said.
Investigations of Congress face special challenges. Lawmakers can try to use the Constitution’s speech or debate clause, which gives limited immunity to House members and senators, to prevent investigators from accessing their communications related to their official duties.
In 2007, the D.C. Circuit Court of Appeals sharply criticized prosecutors for their handling of a search of the office of Rep. William Jefferson (D-La.) as part of a corruption probe. The judges said members of Congress are entitled to advance notice of such a search and to review any materials investigators seek to seize.
However, Zeidenberg said he’s confident those obstacles can be overcome. “There’s no speech or debate clause that covers text messages with constituents about breaking into the Capitol,” he said.
With the number of individuals facing charges now above 70 and still climbing, investigators also might not need to get communications from lawmakers or their offices in the first instance, but can get them from the email accounts and devices of suspected rioters.
“The first people to cooperate get the best treatment,” said Joyce Vance, a former U.S. attorney in Alabama. “Once they’ve identified people who went inside, they’re going to want to turn over what they have either because they have nothing to hide or because they want a deal, so it should not be very hard to get those communications.”
Some lawyers said the key question may not be whether a jury would convict, but whether Justice Department officials — including Biden’s Attorney General nominee Merrick Garland — decide the evidence of collaboration is strong enough to overcome concerns about intruding on the usual robust protections for free speech.
“It’s a big buffer for political speech and that would be a big part of the things Garland will have to look at, but this is like nothing I’ve ever seen from a political leader,” Litman said of Trump’s speech to the rally. “It’s a stronger case than the classic cases where the courts have come down on the political speech side of the equation.”
In his speech just before the attack, Trump urged his followers to “fight like hell.” However, Vance said charging the president or ex-president based solely on his comments at the rally would be challenging.
“They’re susceptible, standing alone, to an interpretation they are hyperbolic,” she said. “It’s really the course of conduct you’d need sufficient to prove intent to incite. … This is a tough one and I’m not sure it’s a realistic expectation the president of the United States is going to get indicted for sedition absent a real smoking gun showing up.”