The top federal prosecutor for the District of Columbia said Thursday that “all options are on the table” for charging members of the violent pro-Trump mob that stormed the U.S. Capitol — including sedition charges.
Michael Sherwin, acting U.S. attorney for D.C., said prosecutors plan to file 15 federal cases on Thursday for crimes including unauthorized access and theft of property, and investigators are combing through reams of evidence to bring additional charges.
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“All of those charges are on the table,” he said. “We’re not going to keep anything out of our arsenal for potential charges. We will bring the most maximum charges we can based upon the conduct.”
Sherwin said 40 other cases had already been filed in District of Columbia Superior Court.
More than 90 people have been arrested in Washington and more arrests are likely. U.S. attorneys from across the country have vowed to find and bring to justice any residents who participated in the insurrection aimed at thwarting the peaceful transfer of power. But it could take weeks to build cases against the rioters.
Experts say some could face the rarely used seditious conspiracy charge. It’s the same charge former Attorney General William Barr’s Justice Department told prosecutors to consider levying against those who caused violence at protests last summer over the killings of Black Americans by police.
Other possible charges for the pro-Trump mob include civil disorder, destruction of property and rioting, experts say.
“You can literally throw the book at them and it would be a pretty heavy book,” said Laurie Levenson, a former federal prosecutor and professor at Loyola Law School. Levenson said it’s important for prosecutors to send a message with their charges.
“This cannot happen again,” she said. “This was a very scary moment for America and it cannot set a precedent that the way you deal with political opposition is through violence and destruction.”
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The Department of Justice has aggressively gone after demonstrators who caused violence during the protests over police brutality, charging more than 300 with crimes including civil disorder and burglary. In many cases, prosecutors pushed to keep them locked up while they await trial despite the virus crisis that has ravaged jails and prisons across the U.S.
Then-Deputy Attorney General Jeffrey Rosen, who stepped into the top DOJ job when Barr resigned last month, told prosecutors in a memo in September that they should consider the use of seditious conspiracy charges against violent demonstrators, saying it does not require proof of a plot to overthrow the U.S. government. No one charged in the civil unrest sparked by George Floyd’s death has actually been charged with sedition.
The charge, which carries up to 20 years in prison, could apply to those who “by force prevent, hinder or delay the execution” of any U.S. law or “by force seize, take, or possess any property of the United States contrary to the authority thereof,” Rosen wrote.
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He cited as a hypothetical example: “a group has conspired to take a federal courthouse or other federal property by force.”
“I do think there are some pretty strong cases, or at least some potential cases, under that statute,” Levenson said of those at the Capitol on Wednesday.
The mob smashed windows and broke doors, sending lawmakers into hiding as they began Electoral College votes affirming Democrat Joe Biden’s victory. Some rioters, many of whom weren’t wearing masks, were captured in videos and photos posted all over social media.
“It’s always helpful to prosecutors if people pose for pictures in the midst of committing crimes,” said Stanford Law School professor David Sklansky, a former federal prosecutor in California.
The violence happened hours after Trump called on his supporters to “fight” to stop the “steal” of the election and march on the Capitol, while Trump’s personal lawyer, Rudy Giuliani, called for “trial by combat.”
Trump’s speech at the rally before the chaos broke out likely would not be considered illegally inciting violence because he didn’t specifically call for people to storm the Capitol, Sklansky said.
First Amendment freedoms mean speech has to be calculated to produce imminent violence to be considered criminal, he said. Similarly, comments by Giuliani were likely also not specific enough to be considered possibly criminal.
On Thursday, White House press secretary Kayleigh McEnany said Trump’s administration found the siege to be “reprehensible.” She said “those who broke the law should be prosecuted to the fullest extent of the law.”
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Four people died in Wednesday’s chaos, including a woman who was shot and killed by police inside the Capitol. Three other people died after “medical emergencies” related to the breach. More than 50 Capitol and D.C. police were injured, including several who were hospitalized, officials said.
The FBI has asked for tips, photos and videos to help identify those who participated in the violence. U.S. attorneys in several states, including Kentucky, Ohio and Oregon, said people could face charges in their home states if they travelled to Washington and took part in the riot.
The U.S. attorney for Detroit and surrounding communities, Matthew Schneider, said investigators will review video footage and other evidence. Serious charges — including destruction of property over $1,000, inciting a riot, civil disorder, sedition, using a destructive device like a pipe bomb — could potentially have venue in Michigan, he said, if there are connections to the state.
But it will take time to go through the evidence, he said.
“I’m personally disgusted and horrified by this. It’s just nauseating to me. It’s sick what people did inside the Capitol,” said Schneider. But he added: “There’s a big difference here between peaceful protests and acts of violence. Just because people travelled to Washington, D.C., doesn’t necessarily make them criminals.”