At least five service members face federal charges for allegedly participating: an active-duty Marine Corps officer who was arrested last week, two part-time soldiers in the Army Reserve and two in the National Guard.
Their charges include assaulting federal police, violent entry and disorderly conduct at the Capitol.
“The harm is against the civilian government. The civilian government should be prosecuting it,” said Rachel E. VanLandingham, a former Air Force lawyer and president of the National Institute of Military Justice, a nonprofit focused on military law issues.
However, she said, pending civilian prosecution does not prevent the military from taking other action in the meantime.
How is this process different for service members?
Active-duty service members are bound by the Uniform Code of Military Justice. Many of its provisions are similar to those in the civilian justice system, but others are unique, such as those that outlaw adultery and conduct unbecoming of an officer and a gentleman.
Serious infractions can lead to incarceration in the military prison system or removal from the military, which adversely affects benefits such as veterans health care and pensions.
But for alleged federal crimes that take place outside Defense Department jurisdiction, the military generally defers to the Justice Department to finish with cases involving service members before it takes over.
Only one of the service members, Maj. Christopher Warnagiris, serves on active duty and is subject to UCMJ considerations.
Why is the military waiting to take action?
Warnagiris, a Marine Corps officer, was accused last week of leading rioters in through the east doors of the Capitol Rotunda. He has been charged with five counts, including assaulting and obstructing police during a civil disorder and obstructing an official proceeding of Congress, according to federal prosecutors.
Military officials will coordinate with civilian prosecutors any UCMJ action that Warnagiris might face to “avoid negatively impacting the case due to legal and other logistical considerations,” said Maj. J.A. Hernandez, a Marine Corps spokesperson.
Waiting for a decision before determining whether Warnagiris should be kicked out of the military is practical, VanLandingham said.
Warnagiris could be removed from the service before a verdict in his case is reached in civilian court. But he would be entitled to a hearing, where a board would decide his fate, VanLandingham said. A criminal conviction would take away that right, and the Marine Corps could separate him without going through a lengthy process.
If the Marine Corps wanted to go through a trial, it could not charge him with the same charges he faced in civilian court, VanLandingham said. But some military offenses, like conduct unbecoming of an officer and a gentleman, would not violate double jeopardy rules if the underlying conduct is distinct from that alleged in the original charges.
Prosecutors may have asked the Marine Corps to apply a light touch with Warnagiris for now in case they need to seek his cooperation. It is possible, for instance, that he knows others involved in the Jan. 6 events and could provide helpful information, VanLandingham said.
However, he could still face punishment, now or later, Hernandez said. His security clearance could be suspended, or career-ending administrative letters could be placed in his personnel file.
A lawyer for Warnagiris, Marina Medvin, declined to comment on her client or whether the Marine Corps has punished him.
What happens now?
Warnagiris, a field artillery officer with several combat deployments, is assigned to a policy and standards office at Marine Corps Base Quantico in Virginia.
“He reports to work each day and is closely supervised,” Hernandez said. It is unclear whether he is allowed to use firearms or retains the security clearance that every military officer receives.
National Guard officials are investigating one of their soldiers, Jacob Fracker, for alleged involvement in the riot, said Cotton Puryear, a spokesperson for the Virginia National Guard.
Fracker, who was fired from his police job after his arrest, remains in the Guard but will not train with his unit until his case with the Justice Department has been resolved, Puryear said.
“Once the legal proceedings are complete, the investigating officer will recommend to his unit leadership the appropriate administrative, judicial or nonjudicial action to take,” he said.
Army officials declined to say what measures they have taken with the reserve soldiers, Capt. Mark Sahady and Sgt. Timothy Hale-Cusanelli, who both face charges in civilian court.
“The Army Reserve remains committed to holding personnel accountable for conduct that does not align with the Army values, and to ensuring all personnel are treated with dignity and respect,” said Lt. Col. Simon Flake, an Army Reserve spokesman.
“Extremist ideologies and activities directly oppose our values and beliefs, and those who subscribe to extremism have no place in our ranks.”
The Wisconsin National Guard declined to comment about Abram Markofski, a Guard member charged in early May.