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Insurrection To Prosecution: What We've Learned About The Capitol Riot47:27
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Pro-Trump protesters gather in front of the U.S. Capitol Building on Jan. 6, 2021 in Washington, D,C. (Jon Cherry/Getty Images)
Pro-Trump protesters gather in front of the U.S. Capitol Building on Jan. 6, 2021 in Washington, D,C. (Jon Cherry/Getty Images)

At least 400 people have been charged for the Capitol insurrection. Former lead prosecutor Michael Sherwin says those charges could soon include sedition. Over two months later, what have we learned about the preparation behind the breach of the Capitol?

Guests

Mary McCord, legal director at the Institute for Constitutional Advocacy and Protection and Visiting Professor of Law at Georgetown University Law Center. (@GeorgetownICAP)

Ryan Reilly, senior justice reporter for HuffPost. (@ryanjreilly)

Also Featured

Andrew Arena, former special agent in charge of the FBI Detroit field office.

Interview Highlights

Two months later, what have we learned about the Capitol insurrection?

Ryan Reilly: "There are definitely these alliances that the government has now uncovered after arrest, and I think that's going to be the case in a number of cases. Where you have an initial arrest and the initial charges up front might be serious, but they might not be the full extent of the criminal culpability. And once they have access to that broader range of materials, often on the cell phones that are being seized from the defendants, they're going to add charges and they're going to make this part of a broader conspiracy. What I would really note about that communication, which still sort of astonishes me, is there is this idea that the people who took part in the insurrection have, that Capitol police aren't doing anything.

"And I mean, from the videos that we've seen and just the sheer numbers of people who are coming in there, it's not clear that there's much more that the Capitol Police could have done. There was just an overwhelming crowd, that you can't stand up to that crowd. I mean, this was a catastrophe in terms of the preparation for this event. This was probably one of the largest domestic intelligence failures in American history, the failure to see this threat coming.

"But on that day, and now there are some Monday morning quarterbacking about what police should have done differently. And obviously they should have done a lot differently to prepare for this event. But you don't go to war with the army you want. You go to war with the army you had. And the army that the government had that day was nowhere near ready to face this threat. So this idea that people are saying, Oh, the police are just letting us do this. I mean, you couldn't execute an arrest that day just because of the sheer numbers.

"There was someone actually who was just recently charged who actually was seized by police and was battling with police on January 6th. And they couldn't process his arrest. And they actually just had to snap a photo of his license. And then eventually, two months down the line, they got around to arresting him. And I think that sort of illustrates just sort of the overwhelming nature of January 6th. And the idea that there was not the resources in place and not the ability in place to execute the number of arrests they really needed to take place.

"Because kettling is a very controversial tactic. And that's the idea of when a group of protesters is seized, and arrested in mass, and that's often been unfairly used and wrongfully used against protesters who did have the right to be on the street and were not acting unlawfully. In this case, anyone on Capitol grounds was acting unlawfully, especially anyone inside the building was acting unlawfully. So if ever there was a reason to execute a kettle, this would have been it. But the manpower wasn't there. The backup wasn't there. And now because of that, we have a situation where they're having to go back and find these people who've now spread out all over the country."

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How much do we know about how closely allied these groups were?

Mary McCord: "We're learning more every day as the Department of Justice either brings new charges, returns superseding indictments, or in the case of the filing yesterday, makes court filings that describe in more detail the communications between the paramilitary organizations. Private researchers with whom my organization works, because we've been working to combat unlawful private paramilitary organizations ever since the Unite the Right rally in Charlottesville, Virginia, back in 2017.

"Private researchers were certainly tracking a lot of the planning and plotting and equipping of various organizations and certainly knew in advance of January 6th and shared with law enforcement in advance of January 6th, the fact that some people were planning on surrounding the Capitol, potentially overtaking the Capitol. Maps of the tunnels were widely distributed online. But the extent of coordination between groups is still something that investigators are learning more about each day. And so are members of the public."

On coordination of the insurrection 

Mary McCord: "I think there's two different ways that there was coordination taking place, one very informal and the other potentially more formal. And the informal is that there was so much online chatter about January 6th in advance of January 6th. And different groups — And I'm not talking just about paramilitary organizations, also conspiracy theorists ... and violent extremists, as well as just a sort of a very pro-Trump MAGA population addicted to social media.

"All of these were sort of trafficking in propaganda and rhetoric about what could happen on January 6th. So certainly anyone who was planning to travel to Washington and wanting to do something to what in their view was 'Stop the Steal,' was certainly aware that many other people had a similar intent. So then the second question is, how coordinated were actual groups who were planning to act on that intent and use force against the Capitol to prevent the tabulation of the Electoral College votes? How many of those people coordinated together?

"And that's the part that I think is coming out in these charging documents. We've certainly seen a conspiracy indictment, two separate superseding indictments against members of the Oath Keepers for their coordination leading up to January 6th. We have a separate conspiracy indictment with respect to the Proud Boys. And now, as you just indicated, we're starting to see documents filed in court that shows at least some type of alliance between these groups."

The dictionary definition of sedition is incitement of resistance to, or insurrection against, a lawful authority. How does that compare to what the legal definition in the United States of what a seditious act would be?

Mary McCord: "So the seditious conspiracy is actually the name of the crime, although that term is only used, and the term sedition is only used in the title of the criminal offense under the U.S. code, and it describes actually quite particularly what is covered. And central to it, is the conspiracy to use force. So to use force to overthrow, put down or destroy the government of the U.S. To levy war against the U.S. or by force to prevent, hinder or delay the execution of any law of the United States, or take or possess or seize any property of the U.S.

"So when you think about what we saw on January 6th ... in order to violate the seditious conspiracy statute, it wouldn't have to be a conspiracy to overthrow the entire government, for example, or levy war against the government. It could be by force to prevent, hinder or delay the execution of any law of the U.S. And as we've been talking about, it is a law of the U.S. that the joint session of Congress must meet to tally the Electoral College votes of the states and certify the winner of the presidential election. And certainly just the reality of January 6th is force was used successfully to delay the execution of that law by about six hours."

What more would prosecutors need to feel confident to bring the seditious conspiracy charges?

Mary McCord: "I think they have to feel confident that there is that agreement, right. That people had a common purpose to actually use force to prevent, delay the execution of law. And that it didn't just happen spontaneously. Because, yes, we saw it happen. It definitely, they used force to prevent and delay the execution of U.S. law. So it's about proving that."

From The Reading List

HuffPost: "Florida Man Charged For Attacking Cops During Capitol Riot While Wearing ‘Trump’ Flag Jacket" — "Federal authorities have charged a Florida man who was caught on video attacking police officers with a fire extinguisher while wearing an American flag jacket bearing the name of former President Donald Trump."

New York Times: "Justice Dept. Links Oath Keepers and Proud Boys Ahead of Capitol Riot" — "Leaders of the Oath Keepers militia and the far-right group the Proud Boys were in communication in the weeks before the Capitol riot and appear to have coordinated some plans for the day of the attack, prosecutors said in court papers."

New York Times: "Justice Dept. Said to Be Weighing Sedition Charges Against Oath Keepers" — "Justice Department officials have reviewed potential sedition charges against members of the Oath Keepers militia group who attacked the Capitol on Jan. 6, and they have been weighing whether to file them for weeks, according to law enforcement officials briefed on the deliberations."

Politico: "Judge warns DOJ that media interviews could taint Capitol riot case" — "A federal judge lambasted the Justice Department on Tuesday, warning that top officials’ comments in recent media interviews threatened to taint the prosecution of some of the most notorious participants in the Jan. 6 Capitol breach."

Washington Post: "Sedition charges for Capitol rioters: Here’s how historic that would be" — "The storming of the U.S. Capitol was a historic event — the first time in more than 200 years that it had happened."

This program aired on March 25, 2021.

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