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ACS Details Post-Insurrection Consequences and What They Mean

January 11, 2021 by Kate Michael
A memorial to Capitol Police Office Brian Sicknick, who died during last week's attack on the Capitol. (Photo by Dan McCue)

WASHINGTON — Days after rioters breached the U.S. Capitol building, interrupted the Constitutionally-required Electoral College vote tallying process, and forced the evacuation of Congress on January 6, 2021, there is a growing call for consequences for all of those involved, including the public, members of Congress, and even the president. 

The American Constitution Society, a progressive legal organization, convened a panel to discuss potential remedies against the political acts of that day. Stephen Vladeck, Charles Alan Wright Chair in Federal Courts at the University of Texas at Austin School of Law, and Kami Chavis, professor of Law and director of the Criminal Justice Program at the Wake Forest University School of Law, discussed legal terms, criminal penalties, and what potential prosecutorial actions could mean as the United States moves forward. 

“Wednesday comes about as close an example of seditious conspiracy as we’ve seen in my lifetime,” said Vladeck. 

While he asserted that the event didn’t qualify as treason since the United States is not at war, Vladeck offered that the uprising more closely aligned with insurrection, which he defined as an act attempting to overthrow the authority of the established government.

“What makes it different is that it’s not just a riot, but an assault on Congress while meeting to confirm electoral votes,” Vladeck continued. “Seditious conspiracy is when more than two persons in any state conspire to… hinder or delay any law of the United States.”

And there are criminal possibilities associated with seditious conspiracy on all levels. But to start, the current criminal focus is on the people who broke into the Capitol building. 

“We have a litany of possible charges,” said Chavis, with crimes committed including unlawful entry, felony theft, felony destruction of government property, assault of federal law enforcement officers, and communicating threats. 

National security implications are another statute under which these people can be prosecuted, she said, not to mention the pipe bombs that were found, and any attempted murder charges as investigations are ongoing, or felony murder or homicide charges from deaths caused as a direct result of the protest and security breach, including that of U.S. Capitol Police officer Brian Sicknick.

Now, in addition to those who physically participated in Wednesday’s insurrection, there are calls for remedy against political acts from members of Congress — and the president — for their perceived part in provoking the violence. 

“[This was] an attack on the very foundations of our democracy…. with rioters incited to violence by government officials. We have to ask, ‘What’s next?’” said Russ Feingold, president of the American Constitution Society. 

Expulsion is a “classic remedy” for members of Congress, according to Vladeck, though he admitted that he suspects that option would go nowhere to oust those members who joined the president in challenging the Electoral College vote count. 

Section 3 of the 14th Amendment states that a two-thirds vote could remove any member “engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” [Amdt14.S3.1.1] But he confessed that it may be “a bit of a stretch to show that members themselves were engaged… even if their rhetoric served to provoke.”

As for the president, both impeachment and invoking the 25th Amendment have been suggested for his part in inflaming the rebellious crowd. Criminal charges also remain a possibility.

While the Justice Department has said that it does not plan on seeking incitement charges against President Trump for his actions at the rally, the agency has not entirely ruled them out. 

Another remedy, invoking Section 4 of the 25th Amendment to suggest that “the president is unable to discharge the powers and duties of his office” [Amdt25.S4] requires the consent and cooperation of the vice president and a majority of department heads as well as a constricting timeline with specific instructions on back-and-forth letters of declaration and discussion.

But it’s not just the timing that impedes this course of action. Most importantly, “[there are] reports that the Vice President has no interest in the 25th Amendment option,” said Vladeck.

The more immediate redress involves a plan to introduce Articles of Impeachment in the House on Monday for “incitement of insurrection” after Wednesday’s riots at the U.S. Capitol. This would be an historic second impeachment for President Trump.

“[Many are] harping on the Impeachment remedy, even with [few] days left in his tenure, because [conviction would result in his] permanent disqualification of holding another office in the United States,” explained Vladeck. “It’s a downstream remedy worth pursuing.”

Even so, Vladeck asserted that, “In context, [despite] everything he said at the rally, and what he tweeted while the insurrection was ongoing, [it will be] difficult to prove incitement, though there is a case to make that the president walked right up to the line.” 

Chavis agreed that the president’s words were “abhorrent but ambiguous,” citing Rudy Giuliani’s “trial by combat” language to be clearer proof. 

Vladeck, who predicts hundreds of arrests and criminal prosecutions forthcoming as well as robust Congressional oversight, said that, especially in terms of the presidency, these options are “immensely grave; none of them should be considered lightly,” but also, “there is no reason that what happened [on January 6, 2021] is the last time he’ll do something wholly unbecoming of his office.”

While the nation awaits the repercussions of Wednesday’s insurrection, Vladeck also suggested that, at the least, this dismal episode should help America to “see the dangers of the unitary executive… It allows us to have the conversation about better distributing powers instead of relying so much on the executive.”

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