2020 Capitol Mob

Here’s How the Capitol Mob Violated Federal Criminal Law By Bryce Klehm, Alan Z. Rozenshtein, Jacob Schulz Thursday, January 7, 2021, https://www.lawfareblog.com/heres-how-capitol-mob-violated-federal-criminal-law. This is a useful article, though its title is completely misleading. It lists statutes that might apply, but it has close to zero on how the crowd violated federal criminal law, because it doesn't link what they did to the statutes. For example, any of them who were carrying guns in the Capitol violated a federal statute (and, I bet, local DC criminal statutes), but were any of them carrying guns? Maybe, but I haven't seen even any rumors of that.

I question calling it a "mob" too. There were mobs, to be sure-- a crowd of people pushing down barricades is a mob. But people wandering around the Capitol or standing in line behind velvet guard cords aren't a mob.

Let's think of what people in the crowd did that are common-sense illegal, because there are no doubt statutes that apply, though perhaps only DC local criminal statutes:

1. Disobeying police orders to stop pushing barricades.
2. Pushing away barricades.
3. Knocking down or punching policemen.
4. Breaking windows.
5. Picking up government property such as podiums or police shields with possible intent to steal them (this probably requires actually taking them home, not just moving them). The man who took a letter from Nancy Pelosi's office did this, though unless it was an important letter this is de minimis. (De minimis lex non curat.) 6. Entering a "restricted area" or simple trespassing. Trespassing is the easier one. The "restricted area" federal statute only applies to buildings occupied by the President or VP or someone else protected by the Secret Service. Pence was there, and Harris, so maybe it does apply. But trespassing is simpler.

It is questionable whether 99% of the crowd violated any law, though, including many people in the best-known photos and videos. This is because all we have for 99% of the crowd is that they were on the Capitol grounds or in the Capitol. That's not illegal, unless you have good reason to think that the police forbid it. Remember, on ordinary days, tourists are there all the time. To convict Mr. Smith of trespassing, you need evidence beyond a reasonable doubt that he knew the owner of the property wanted him to stay off it, I think (am I wrong?). If there are prominent No Trespassing signs that anybody entering your property would see, that would usually provide proof beyond a reasonable doubt. If the front door of your house is open and someone comes to the house, sees that, and comes in to your living room, though, I doubt that counts as trespassing, especially criminal trespass. It is certainly not breaking and entering.

In the case of the Capitol, whoever pushed aside the barricades or broke a window knew they were trespassing. But what about the people who followed who didn't even see that there was a barricade or that the doors were closed? There is video of people entering the capitol peacefully through an open door with police standing there watching and making no sign of disapproval. Those people were not trespassing--- and if you think they were, remember it has to be beyond a reasonable doubt to convict them. Now consider someone against whom the only evidence is a video of them inside the Capitol looking at the ceiling or wandering the hallway. There is evidence that the police let some people in. There is no evidence that these particular people entered illegally, much less evidence beyond a reasonable doubt. Most of them are innocent, and even those few who were guilty will mostly have to go free for lack of evidence.

And, indeed, though I've just glanced at the criminal complaints, it looks like the people being arrested on probably cause are those against whom the police have good evidence, such as a policeman reporting he was punched by the arrested man, or people who were still in the Capitol five hours later at 7:15 pm when there were loud announcements broadcast in the Capitol that it was closed --https://assets.documentcloud.org/documents/20446138/yevgemya-et-al-affidavit.pdf(which implies to me that there were *not* such broadcosts earlier in the day).

The collection of documents at Lawfare charging people with crimes, both federal and local, is essential readings. See https://www.lawfareblog.com/compiling-criminal-charges-following-capitol-riot .

See https://apnews.com/article/capitol-police-reject-federal-help-9c39a4ddef0ab60a48828a07e4d03380 for a story on the failure of the Capitol Police, including their rejection of help offered from the Defense Dept and their lack of contingency planning.