Explainer: What crimes can the U.S. Capitol rioters be charged with?

WASHINGTON (Reuters) – Dozens of supporters of U.S. President Donald Trump have been criminally charged in connection with the violent storming of the U.S. Capitol building earlier this week, and many more cases are expected.

FILE PHOTO: Pro-Trump protesters storm into the U.S. Capitol during clashes with police, during a rally to contest the certification of the 2020 U.S. presidential election results by the U.S. Congress, in Washington, U.S, January 6, 2021. REUTERS/Shannon Stapleton/File Photo

Five people died as a result of the riot, including a Capitol Police officer. No one has been charged yet in connection with any of those deaths.

Several different criminal statutes and theories of liability could be used against the rioters, legal experts said.

Here is an overview of some of the potential charges, including seditious conspiracy and felony murder.

What criminal charges have been filed so far?

Some of the more than 50 defendants in the federal district and superior courts have been charged with gun-related offenses. There are federal laws against carrying a gun in the Capitol building, and possessing an unregistered firearm or unlicensed ammunition in the District of Columbia.

A Seattle man, Mark Leffingwell, has been charged with assaulting a federal law enforcement officer, a federal crime. He is accused of punching a Capitol Police officer in a separate incident from the one that led to an officer’s death. A lawyer for Leffingwell did not immediately respond to a request for comment.

Several dozen individuals have been charged with unlawful entry on the Capitol grounds, which is a crime under the Washington D.C. criminal code and federal law. Those include Nicholas Ochs, a member of the far-right group Proud Boys, who posted a photo of himself inside the Capitol building. A lawyer for Ochs could not be identified.

Could multiple people be charged with killing a police officer?

Capitol Police Officer Brian Sicknick died on Thursday. Sicknick “was injured while physically engaging with protesters,” the police department said in a statement. He collapsed after he returned to his divisional office, the statement said.

Sicknick was one of the five people to die as a result of the riot.

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A top priority for law enforcement will be identifying anyone responsible for Sicknick’s death, said Matt Jones, a former federal prosecutor in Washington now at the law firm Wilmer Cutler Pickering Hale and Dorr.

If someone assaulted Sicknick, that person could be charged with murder or manslaughter.

Anyone who assisted the main perpetrator could face criminal charges for “aiding and abetting” murder or manslaughter.

If Sicknick was killed as part of a coordinated plot to attack individuals inside the Capitol, individuals involved in that scheme could be charged as co-conspirators, Jones said.

“Prosecutors are no doubt scouring every phone and social media post they can,” Jones said. “And, to the extent they show an intent to cause harm to an officer, or member of Congress or their staff, that will dramatically move the ball forward.”

Jay Town, former U.S. Attorney for the Northern District of Alabama, said rioters who were simply present in the room when Sicknick was engaged with protesters are far less likely to be charged.

“To assign culpability beyond the actual assailant, or those that aided or abetted them, would normally require proof that other individuals knew that the commission of their criminal acts might likely lead to death or serious bodily injury,” Town said.

Could there be felony murder charges?

There is a doctrine of U.S. law, recognized in Washington, called felony murder, which allows prosecutors to charge people with murder even if they did not intend to kill.

Typically, a defendant is charged with felony murder if they engage in a violent crime and a death indirectly results from their actions.

Ken Kohl, a top prosecutor on the case, said at a news conference on Friday that felony murder “is always in play in something like this.”

Legal experts said more facts were needed to determine if this theory of liability would apply.

Jones said it could be difficult to bring felony murder charges. To do so, prosecutors may need to prove certain underlying offenses such as armed robbery or kidnapping, which do not appear to be present here.

What about sedition?

It is very possible individuals will be charged with a federal law that bans efforts to overthrow the government, legal experts said.

That law prohibits conspiring to “overthrow, put down, or to destroy by force” the U.S. government.

The statute “will absolutely apply once the investigation is completed,” said Justo Mendez, a criminal defense attorney at Holland & Knight in Texas and a former federal prosecutor. “The evidence of ‘conspire to overthrow’ is all over social media.”

Who is bringing the criminal cases?

All of the criminal charges so far have been brought by the U.S. Attorney’s Office for the District of Columbia, part of the U.S. Justice Department. These prosecutors enforce federal laws, as well as the District of Columbia’s criminal code.

Federal prosecutors around the country could also bring charges if plans to carry out violence were made within their jurisdictions.

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