At the time, Rosen and his boss, then-Attorney General William P. Barr, were pushing for federal prosecutors to aggressively charge, and hopefully deter, further civil unrest over police conduct in cities like Portland, Ore., New York and Chicago. In turn, civil rights advocates and liberals expressed concerns that the Trump administration was seeking to overcharge crimes more typically prosecuted at the local level with lesser prison sentences.
Now, however, amid disturbing scenes of a mob of people smashing their way into a joint session of Congress to disrupt a ceremonial but essential part of the installation of the next president, law enforcement officials say Rosen’s memo is a blueprint for pursuing federal cases against Wednesday’s rioters.
“The Department of Justice is committed to ensuring that those responsible for this attack on our Government and the rule of law face the full consequences of their actions under the law,” Rosen said in a statement Thursday. “Some participants in yesterday’s violence will be charged today, and we will continue to methodically assess evidence, charge crimes and make arrests in the coming days and weeks to ensure that those responsible are held accountable under the law.”
The potential charges include seditious conspiracy, an ominous-sounding and rarely used criminal statute that bars the use of force “to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.”
The charge carries a maximum possible prison sentence of 20 years.
Other lesser charges such as unlawful entry are also likely, and may be easier to prove, given the voluminous social media postings of rioters storming into lawmakers’ offices, taking material and smashing things.
Federal law explicitly makes it a crime to damage federal property, engage in civil disorder or cross state lines in a conspiracy to commit certain crimes of violence.
On Wednesday night, a number of federal prosecutors publicly declared their intention to bring cases against anyone from their districts or states who traveled to Washington to riot.
U.S. Attorney R. Trent Shores tweeted that if anyone from his district in northern Oklahoma “traveled to DC to commit these violent acts then they’ll be prosecuted” by his office. “We take an oath to protect the Constitution against all enemies foreign & domestic,” he said.
Traditionally, most crimes arising from public protests in Washington, D.C., have been prosecuted locally, but with poor results, particularly in the case of scores of people charged with crimes in the city on the day of President Trump’s 2017 inauguration.
Because two suspected pipe bombs were found outside the Republicans’ and Democrats’ party headquarters Wednesday, there is also the potential for terrorism charges to be filed, depending on what evidence the FBI finds.
FBI Director Christopher A. Wray on Thursday decried the “blatant and appalling disregard for our institutions of government and the orderly administration of the democratic process. As we’ve said consistently, we do not tolerate violent agitators and extremists who use the guise of First Amendment-protected activity to incite violence and wreak havoc.”
He said the FBI has deployed its “full investigative resources” and will “hold accountable those who participated in yesterday’s siege of the Capitol.”
While about a dozen people were arrested by Capitol Police as the rioting was ongoing, the vast majority of those in the mob that broke into the building were allowed to politely leave once the chaos ended. One online video even showed an officer holding the door for a stream of angry individuals, including one who triumphantly shouted: “We stopped the vote!”
Now, investigators face a more complex task of piecing together digital evidence to identify and charge those who engaged in violence. That could take weeks or in some cases months, meaning that the bulk of that prosecutorial work may be left to the Biden administration.
D.C. Metro police released dozens of photographs Thursday seeking to identify and possibly charge with unlawful entry some of those who stormed into Congress, including a heavily tattooed shirtless man draped in animal fur and wearing Viking horns.
The political fallout from the rioting continued Thursday, as Republicans faced a deep, angry rift within their party between those who condemned the violence and Trump’s instigation of it and those who continued to foster the unfounded notion behind the mayhem — that the presidential vote count giving Democrat Joe Biden a clear victory was somehow amiss.
Barr — who had been one of Trump’s most loyal and effective Cabinet secretaries — issued a statement condemning the president.
“Orchestrating a mob to pressure Congress is inexcusable,” Barr said in the statement, released through his former spokeswoman. “The President’s conduct yesterday was a betrayal of his office and supporters.”
Barr resigned as attorney general on Dec. 23, his relationship with the president having soured in his last months in office. Although he had before the election warned of the dangers of fraud from mass mail-in voting, Barr said afterward that the Justice Department had not detected evidence of such conduct that could affect the result, infuriating the president.
On Wednesday after the mob stormed the Capitol, Barr had issued a statement condemning the violence and calling on federal agencies to disperse it — though not taking aim at Trump. His Thursday statement made clear he blamed Trump at least in part for what occurred.