I do not ordinarily begin my monthly column by quoting federal law, but this is not an ordinary month.
18 U.S. Code § 2385, makes it a felony to “advocate, abet, or advise” overthrowing the government. Whoever “helps” or “encourages” anyone to do so, can go to prison for up to twenty years. If “two or more persons” conspire to commit these offenses, that is yet another crime.
Section 2384 of the Code, “Seditious conspiracy,” calls for up to twenty years in prison for people who get together to interfere with the execution of any law of the United States or use force to take any property of the United Sates.
The “rebellion or insurrection” law (§ 2383) prohibits giving “aid or comfort” to or being any part of “insurrection” against the laws of United States. Violate that section and you can be punished by up to ten years.
This column is not about senators or members of Congress who voted to ignore state-certified electoral votes. Federal law does not make elected officials into criminals for being wrong-headed. I am writing about those who advised, aided, or “comforted” the criminals who battered down the Capitol doors, took over the House chamber and the Speaker’s office, and stormed the electoral process.
What they did looks a lot like sedition. I will leave it to you to identify who fits into this group in addition to Donald Trump himself (“Be there, it will be wild”), but among the names that come to mind are Donald Trump, Jr. (“we’re coming for you, and we’re going to have a good time doing it”), Rudy Giuliani (“let’s have trial by combat”), Michael Flynn (“we will not stand for a lie”), and George Papadopoulos (“there are but two parties right now – traitors and patriots”).
I am also writing about the men and women whom we saw listen to Trump’s and his lackeys’ exhortations, follow Trump’s instructions to march down Pennsylvania Avenue (he said he would join them but of course he did not), and then commit violent crimes. The First Amendment protects free speech, even the speech that we hate, but it does not protect thugs who set out to take over the Capitol, prevent Congress from carrying out its constitutional duties, and overthrow the government.
You don’t have to be a lawyer to know a felony when you see one with your own eyes. What we saw on January 6 was a whole raft of crimes—gun-related offenses, assault on a federal law enforcement officer, unlawful entry, and trespass, to name a few. There is at least one more offense that law enforcement officials need to consider: Murder.
The “felony murder rule” is an ancient legal doctrine that holds a person who participates in certain types of crimes responsible for someone’s death while the crime is being committed, even if he or she didn’t pull the trigger. The common example is the bank robbery where one of the robbers kills someone inside the bank and the driver of the getaway car is charged with murder.
In this case, someone turned a fire extinguisher into a weapon and used it against Brian Sicknick, a Capitol Police officer doing his job. This federal employee, ironically a Trump supporter according to the Wall Street Journal, is dead. The person who committed the deed is obviously culpable and will, I assume, face homicide charges. But the felony murder rule sweeps more broadly.
I do not suggest that the rioters should all be charged with murder. But the ringleaders who instigated the attack, and those who committed violence inside the Capitol, have blood on their hands. We will see if any of them is charged with felony murder. But even if they are not and are charged and convicted of lesser felonies, the sentencing judge should consider the death of Officer Sicknick as an aggravating factor.
In sum, law enforcement must now look at two distinct groups—those who broke into the Capitol, and those who incited them knowing they were creating a risk of immediate harm. Many members of the former group have been arrested, with more sure to come.
As for the group of public officials and others who did not march and maraud, but who encouraged and promoted lawlessness or “gave comfort” to the insurrectionists, the Biden Justice Department will need to make some difficult decisions. What is needed, what the rule of law demands, is accountability.
Meanwhile, the Capitol flag flies at half-staff, Officer Sichnick’s family members mourn their loss, and we collectively hold our breaths.