Capitol punishment

Sean Rameswaram: Welcome to Today Explained. I'm Sean Rameswaram.

Noel King: And I'm Noel King.

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Sean Rameswaram: The former president's second impeachment trial begins this week. That's a thing that's never happened before. There's never been a second impeachment trial of a president. And there's never been an impeachment trial of a president who's no longer in office. Even after leaving office, the former president is pulling unprecedented moments out of his bag.

Noel King: We've talked plenty about the insurrection on the show, but in case you missed it... The former president had been vilifying the media since before he was elected. Then he spent much of 2020 trying to delegitimize Joe Biden, mail-in voting, and American election integrity itself. On election night, he immediately cast doubt on the results. A few days later, major media organizations called the election for Joe Biden, and the outgoing president ramped up his claims that the whole thing was stolen. Rudy Giuliani got involved. The loser and his legal team started bullying states into throwing out votes. There were dozens of legal challenges. He lost basically all of them. He promoted a few rallies in D.C. Both turned violent. That's foreshadowing. All the states certify their results. The Supreme Court wants no part of any of the challenges. Then, in a final attempt to turn the tide, the biggest loser promotes one last rally, one last speech in D.C., the day Congress was set to certify the election. This one seemed pointed at his own vice president, Mike Pence, an attempt to try and get him to somehow throw out the election, a thing Pence couldn't do. but that didn't stop thousands of diehard MAGA bros and Proud Boys and Neo-Nazis and Q-types from showing up and storming the Capitol with weapons and feces and Confederate flags and plastic ties intended for politicians they never found. People died. The storied tradition of the peaceful transfer of power in America came to an end.

Sean Rameswaram: And at a House hearing last week, a former Homeland Security official warned Congress that right-wing extremist groups not only viewed the whole thing as a victory, but as an inspiration. Sadly, I do believe that we will be fighting domestic terrorism that has its roots and inspiration points from January 6th for the next 10 to 20 years. The question now is, will the former president be convicted? Unless 17 Republican senators decide to defy the opinions of the majority of Republican voters around the country, Trump is going to escape conviction again. And the early signs are that that is exactly what will happen, that he will be acquitted again.

Andrew Prokop: That's not to say that there won't be any consequences for the people who actually physically stormed the Capitol. Many of them have been arrested and investigations and court cases are moving forward on that. But as far as the guy who was trying to egg them on, the now former President Trump, he looks likely to get off scot-free. We'll talk about the consequences for the insurrectionists late in the show, but let's start with the ringleader. The House impeachment managers filed a brief last week laying out their case. What did it say?

Sean Rameswaram: So the House impeached Trump on one count. Incitement of insurrection. They say, In the months preceding the joint session, President Trump repeatedly issued false statements asserting that the presidential election results were the product of widespread fraud and should not be accepted by the American people or certified by state or federal officials. They focus on Trump's speech. He also willfully made statements that in context encouraged and foreseeably resulted in lawless action at the Capitol, such as we fight like hell. And if you don't fight like hell, you're not going to have a country anymore. They also focus on how, as the mob was starting to attack the Capitol, Trump condemned Vice President Mike Pence for refusing to basically try and interfere with the vote counting process and asserting this power that he could throw out certain electoral votes that he didn't like. And then they're also focusing on the federal response that Trump was slow to order action to rein in the mob and to himself speak out and condemn their actions.

Andrew Prokop: Donald John Trump thus warrants impeachment and trial, removal from office and disqualification to hold and enjoy any office of honor, trust or profit under the United States. And the president's legal team, including a lawyer who defended Roger Stone and a prosecutor who declined to charge Bill Cosby for sex crimes, filed a response this morning on behalf of the former president. What does it say? So far, they have not gone so far as to say that Trump was right, that the election was stolen from him. There is a very unique sentence in one document that Trump's legal team filed. It reads, Insufficient evidence exists upon which a reasonable jurist could conclude that the forthwith president's statements were accurate or not. And he therefore denies they were false. Say what? They're not saying Trump's statements about Democrats stealing the election from him are true. They're just claiming that there's not enough evidence to persuade a reasonable jurist that the claims are false. And so therefore he denies that they are false.

Sean Rameswaram: So this is just like a somewhat ridiculous way to avoid outright stating whether Trump's lies about the election are in fact lies or not. And therefore, he was justified in encouraging a attempted coup on the federal government? Well, so they have more specific defenses of Trump conduct though they often tend to be factually dubious. For one, they claim that Trump had no intention of interfering with Congress count of the electoral votes that basically you know he gave the speech he talked about being tough and fighting like hell but that was basically rhetoric. He didn't really want them to go as far as they did. Seems like vintage Trump. Another argument they made is that he was exercising his First Amendment right to express his belief that the election results were suspect. Like, he wasn't inciting a mob. He was just stating his opinion. And doesn't the Constitution give him the right to do that?

Andrew Prokop: But when it comes to the jurors in this case, who are the members of the U.S. Senate, 50 of whom are Republicans, the argument that Trump's team has presented that's been the most successful so far doesn't have to do with these facts at all. It's simply an argument that the trial itself is unconstitutional because Trump is a former president and they claim a former president is not subject to an impeachment trial. And this is tricky, right, because there is no precedent here for conducting an impeachment trial of a former president. Yes, no former president has ever been impeached or tried. And reading the plain text of the Constitution, it is not specifically clear on whether that can happen.

Sean Rameswaram: Now, the Democrats point out that though impeachment does seem to be a punishment for federal officials, there are two punishments for impeachment laid out as possibilities. One is that the official will be removed from office, which is obviously irrelevant because that has already happened for Trump. The second, though, is that the official could be banned from holding future office. And that is really what this trial is all about. And they argue that that punishment would apply to former officials. And also, if Congress intended to give a former official that punishment, wouldn't they be able to just, you know, if they wanted to avoid it, if they saw it coming, couldn't they just resign and then run for office again? It seems like a bit of a loophole.

Andrew Prokop: The House Democrats also point to some precedent involving a cabinet official, the secretary of war under Ulysses S. Grant's administration, William Belknap. He was in the process of being impeached by the House when he resigned just before the impeachment passed. Then the Senate went ahead and held the trial anyway. They ended up acquitting him, but they decided that they did have the right to hold a trial for a former official. And, you know, if this thing really does advance and they did try to ban Trump from holding future federal office, this is the kind of thing that the Supreme Court might end up deciding to weigh in on because it is a clear ambiguity in the Constitution.

Sean Rameswaram: Now, the court could punt and leave the issue just to Congress to resolve, but they could also decide to resolve it themselves. OK, the Supreme Court could weigh in. Democrats believe they have firm constitutional footing and Republicans don't. So it seems unlikely to me that Republican senators are are truly convinced by the merits of this constitutional argument. Instead, what seems likely is they were looking for an excuse to get out of this problem and to wash their hands of the whole matter. And if they didn't have that, they would find another excuse. But there was an early test vote on this question already, and 45 out of the 50 Republican senators voted against cutting off debate on an assertion that the trial was unconstitutional. So they didn't quite all say that we fully believe this is unconstitutional, but they signaled that they are sympathetic to this argument. And because conviction at an impeachment trial takes two-thirds of the Senate, that's 67 votes, so you need 17 Republicans to go along to make it happen. And if all Republicans except five are already leaning toward this, hey, maybe this trial is unconstitutional thing, it seems pretty unlikely that conviction is going to happen.

Noel King: You know, and it once feels like this sort of eye-rolly, of course, there won't be consequences for the former president who has faced very few consequences in four years of tumult and breaking of norms and even laws. But I mean, at the same time, it's still sort of shocking that a month ago there was an attempted coup on the Capitol and an insurrection that left now several people dead and has scarred the peaceful transfer of power in this country forevermore. Will there be no consequences for the president because of it, Andrew? Does anything matter, Andrew? And my opinion is that things do matter. When it comes to the eternal question of will elected Republicans impose actual consequences on Donald Trump for bad behavior, I think the answer to that has often been no, and it may well continue to be no. But he has faced reputational consequences. He lost his Twitter account. Corporate donors have been shying away from people involved in this. Before it happened, you know, he was all set to announce he was going to run again in 2024. And we haven't heard anything about that. It sort of took the bloom off that rose.

Sean Rameswaram: But of course, you know, it's a long time between now and the 2024 election and he remains popular among Republican voters. And if the Senate Republicans decide to allow him to run again, if they acquit him at this impeachment trial, it's entirely possible that he could make a comeback. And we will be dealing with all of these issues again in 2024 and onward.

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Sean Rameswaram: The former president may have incited a riot, but despite promising to show up, he went back to the White House to watch it on TV. And while he might get to play a get-out-of-jail-free card, it's not looking so good for the MAGA mob who ate up his lies. Thousands showed up at the Capitol, hundreds broke into the building, and so far something like 200 of them are facing charges. We got in touch with Alan Rosenstein to find out what kinds of charges. He's a law professor at the University of Minnesota who used to be an attorney in the Department of Justice. So it depends. Almost everyone is being charged at least with trespassing on the Capitol because that's a pretty straightforward charge to bring. Some individuals brought weapons into the Capitol and they're being charged with weapons offenses. Some people engaged in violent activity, assault on police officers. They're being charged with that. And then a small number of the planners are being charged with conspiracy for not just engaging in the riot, but actually playing a planning role in that.

Alan Rozenshtein: Trespassing feels very much like, you know, me and my friends hopped the fence to hang out on our high school bleachers on a Friday night, whereas conspiracy feels a lot more like me and my friends got together and planned to invade a government building. But then there's something no one's been charged with yet, but could be charged with later, depending on how these investigations go, right? That's called seditious conspiracy, which feels like, you know, me and my friends tried to undo the will of the people. Tell me about that charge.

Sean Rameswaram: So it is a pretty old charge. The statute criminalizing seditious conspiracy was first enacted after the Civil War. And it criminalizes working with one or more people to overthrow, put down, or destroy by force the government or the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States. So in other words, it was intended when the statute was enacted to apply to members of the Confederacy who were at the time engaged in a civil war against the United States. And through its history, it's been used to prosecute individuals who attack the foundations of U.S. government.

Alan Rozenshtein: So a famous example was in the 1950s, several Puerto Rican nationalists walked into the capital and started shooting. Estimates of the numbers of shots fired range from 15 to 30. And each bullet hole found as a grim reminder to those who were present of the terrible surprise attack. And they did so in part because they were motivated by the cause of Puerto Rican nationalism. The gun wielders and to their accomplices goes the evil distinction of having perpetrated a criminal outrage almost unique in America's history. Seditious conspiracy charges were brought against those individuals.

Sean Rameswaram: How hard is it to prosecute someone with sedition? It's not easy. So the last time the Department of Justice tried this was in 2012 against a Illinois sort of Christian militia group called the Huttaries. According to the indictment, the Houtarys had an elaborate plan to ambush and kill a member of law enforcement, luring them to their death with a fake 911 call or a traffic stop. Then the group would use deadly explosive devices to kill dozens more at the officer's funeral. So as to provoke a response from the government that in the eyes of these militia members was going to lead to some sort of civil war and the overthrow of the U.S. government. And because that was the long-term plan, the government brought these seditious conspiracy charges. The judge in that case threw out the seditious conspiracy charges because he said, look, these people wanted to commit crimes. They wanted to kill a police officer. That's serious. That's terrible. They should be prosecuted for that. But there's no indication that they were trying to attack the government of the United States itself.

Alan Rozenshtein: So I think that's the key to a seditious conspiracy charge. It's attacking the core functions of the government. In this case, on the one hand, you can question the seriousness of these individuals. The atmosphere inside the Capitol often seemed more like a carnival than like an insurrection, and these people weren't trying to be secret about it. They were flaunting this on social media. So there's a tendency to dismiss this as kind of amateur hour. On the other hand, the goal, at least of several of the insurrectionists, was to stop the certification of electoral college vote, which is the core of the peaceful transfer of power, which is fundamental to American democracy. So I do think that for those who came down to D.C. and worked with others in order to stop the vote by force, I do think seditious conspiracy charges would fit pretty naturally.

Sean Rameswaram: And the consequences for seditious conspiracy are quite serious. It has a maximum penalty of 20 years in jail. It feels like part of what the government is grappling with here, especially in the case of the former president, but perhaps in this case, too, is that something like this has just never happened before. So there isn't a lot of legal precedent on how to proceed. Does that mean that the government might err on the side of not prosecuting the insurrectionists as firmly as it could? It's possible. I assure you that right now in DOJ, there are a lot of memos flying around and a lot of discussions about just this topic.

Alan Rozenshtein: I think there are a couple of concerns for DOJ, and that might explain why we're not seeing these charges brought immediately. One is you have a huge number of people. And so just coordinating all of these charges across so many individuals when you have these merged investigations is difficult. It just takes time to do it well. In addition, you have a lot of cases potentially across the country and you want the legal theories that the government is putting forward in all these cases to be consistent. And so that requires a lot of coordination. Some of the delay is just because these are very complex investigations and it just takes time to do them well. And there's not, frankly, I think a huge premium on getting this done tomorrow versus next month versus six months from now.

Sean Rameswaram: I think another issue is that some of these prosecutions are going to be set up to then investigate additional individuals, right? So the most straightforward prosecutions are of those who were actually at the Capitol on January 6th. But of course, those people don't exist in a vacuum. You have the individuals who spoke at the quote-unquote stop the steal rally, and there's a lot of interesting questions about what coordination they may have had with the people actually at the Capitol. You have just other general people across the country, right? You have other members of the Proud Boys or the Oath Keepers or other of these groups. And so again, these investigations all have to be coordinated.

Alan Rozenshtein: And then I think the final reason, I think this is something really important, is that seditious conspiracy is potentially a very, very blunt instrument. And if you look at the language, it's actually very, very broad. So the language doesn't just cover waging war against the United States, insurrection against the United States. It actually covers interfering with the execution of any law. But that's enormously broad. And we actually saw a potential pitfall of this back in September, when then the Deputy Attorney General Jeff Rosen released this email and this memo to prosecutors around the country saying, hey, as you're considering charges against those who engaged in riots that were connected to the Black Lives Matter protests over the summer, you should consider bringing seditious conspiracy charges, right? Especially for those who, let's say, attacked police stations or attacked federal facilities. Now, at the time, this was criticized very harshly because we don't want to necessarily bring seditious conspiracy charges against individuals, even those who committed crimes when they were connected with racial justice protests.

Sean Rameswaram: But the problem is the statute doesn't give us any obvious way of distinguishing between all the different cases. So I think part of what DOJ is grappling with is how does it bring seditious conspiracy charges in this case while still limiting the ability of a future administration to use that as precedent to bring seditious conspiracy charges in a much broader set of circumstances, including ones where we're not comfortable doing that? And that is a difficult question, and it's going to take a lot of thinking on DOJ's part.

Alan Rozenshtein: I imagine part of the motivation is saying you can't just walk into the Capitol, destroy this sacred building, interrupt an action of the federal government to certify an election, no less, and get away with it. And yet it's interesting just looking at the video and reading about these sort of reflections on what happened on January 6th. Police, Capitol Police, National Guardsmen, they let these people walk out. Is it too late? Did they already get away with it? I mean, on the one hand, no, they obviously didn't because the vote was delayed a few hours, then it started up again, and the election was certified. And a lot of these people are going to jail. On the other hand, they made an amazing statement. It was an act of terror, frankly, I think no less spectacular in some regards than 9-11. So I'm sure they have inspired a whole generation of right-wing, white nationalist militia groups for many years to come.

Sean Rameswaram: And I think what I found particularly disturbing was that even after the riot, so many Republicans in Congress voted to throw out valid votes in the 2020 election. Even after members of the Republican Party had tangible, I mean, the most visceral, tangible evidence of the danger of their position, they still decided to go along with the view of those who had just stormed their building. And I think that fact means that no matter how many of these rioters go to jail, January 6th will always be viewed in some quarters as a victory because it showed that a large amount of the American public and shockingly a huge amount of the American political elite supports views and tactics that just six months ago, I think, would have been thought completely inconceivable in the United States.

Alan Rozenshtein: Look, at the end of the day, if we don't want our politicians to support sedition, we have to not vote for politicians who support sedition. And the sad fact of the matter is, although President Trump's behavior between the election and inauguration was, I think, worse than most of us anticipated, it was in some ways quite predictable. It was within the bounds of what we should have expected. And although President Trump lost the election, he wasn't wiped out. There's still millions and tens of millions of Americans who, knowing his anti-democratic behavior, who, knowing that President Trump refused multiple times to promise to accept the results of the election, they voted for him. And they vote for the Republicans who support him.

Sean Rameswaram: Now, that doesn't mean that the criminal process is worthless. That doesn't mean we shouldn't bring seditious conspiracy charges where we should. That doesn't mean it's not useful to deter, to set precedent, to express the condemnation we have of this behavior. But we can't expect the criminal process in the Department of Justice to save us from ourselves. At the end of the day, society gets the government it deserves, at least in a democracy. And so there's no substitute, if you're horrified by this conduct, to not vote for it and to try to convince your friends and your neighbors to also not vote for it.

Alan Rozenshtein: Thank you.

Sean Rameswaram: We'll see you next time.

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Sean Rameswaram: After the break, sedition.