Why aren't the January 6 insurrectionists being charged with insurrection?

Are the Capitol rioters insurgents or just ordinary criminals?

An objection that has come up a couple of times over the past few days is that the insurrection wasn’t really an insurrection because none of the participants have been charged with the crime of insurrection. Some even go so far as to say that the January 6 rioters are political prisoners. This provokes some interesting questions, but I think it also falls victim to some logical fallacies.

To start with, let me just point out that I’m not a lawyer, but I do play one on the internet. The opinions expressed here are not legally binding but they will hopefully be at least somewhat interesting.

By Tyler Merbler from USA - DSC09523-2, CC BY 2.0, https://commons.wikimedia.org/w/index.php?curid=98637510

First, a little background. The Constitution and federal law both address insurrections. The Constitution gives the federal government the authority to call “forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions.”

Further, a 1795 law echoed that authority and added, “That, whenever the laws of the United States shall be opposed, or the execution thereof obstructed, in any state, by combinations too powerful to be suppressed by the ordinary course of judicial proceedings, or by the powers vested in the marshals by this act, it shall be lawful for the president of the United States to call forth the militia of such state, or of any other state or states, as may be necessary to suppress such combinations, and to cause the laws to be duly executed.”

What these laws did not do was to define what constitutes an insurrection. Other laws do lay out what is to be considered an insurrection, however. An 1882 law defines the act as:

A rebellion, or rising of citizens or subjects in resistance to their government. See INSURGENT. Insurrection shall consist in any combined resistance to the lawful authority of the state, with intent to the denial thereof, when the same is manifested, or intended to be manifested, by acts of violence.

Do the rioters of January 6 meet that definition? They rose up in resistance with intent to deny the lawful authority of the government, specifically Congress, the vice president, and the Electoral College. They also did so violently. The two boxes laid out in the definition are checked.

Some members of the mob acknowledged that they were taking part in an insurrection. An indictment against several members of the III Percenters notes that Russell Taylor answered a text message asking what was happening at the Capitol and what would come next with the one-word response, “Insurrection!”

Current US law, passed in 1948, states:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

-18 U.S. Code § 2383

The Justice Department has an online list of rioters who are being criminally charged for their actions on January 6, but none are being cited for “insurrection.” So, if the events of January 6 meet the definition of an insurrection and federal law makes participating in an insurrection illegal, why aren’t the rioters being charged with insurrection?

First, just because no one has been charged with insurrection so far doesn’t mean that no one will. Rioters are still being arrested and charged and it is possible that some will be charged with insurrection at some point. It may be that the charge will be applied to ringleaders of the attack.

It is interesting to note, however, that the famous insurrection in American history did not include any prosecutions for insurrection or rebellion. The Union did prosecute some Confederates for war crimes such as mistreating and killing prisoners, but Confederate soldiers were paroled back to their homes as long as they obeyed the law. Politico notes that President Lincoln did issue 64 pardons to former Confederates. These included 17 for treason and 12 for rebellion. Even the case against Jefferson Davis was dismissed after the Confederate leader was pardoned by Andrew Johnson.

Should we assume, as those who minimize the attack on the Capitol do, that because there were no prosecutions for rebellion that no rebellion actually occurred? Four years of war would seem to argue to the contrary.

There are several other reasons that prosecutors might not charge rioters with insurrection even though that is what was happening. The most obvious is that plea agreements could be allowing defendants to plead to lesser charges. However, since insurrection is not listed in the initial indictments and complaints, that doesn’t seem to be the answer.

In my unexpert opinion, the insurrectionists are not being charged with insurrection because there are easier ways to convict them. There are plenty of other charges that can be leveled against them that are more cut-and-dried than an insurrection or treason charge. If a defendant is in a picture or on video inside the Capitol, committing acts of vandalism, or beating a police officer, that amounts to an easy layup for the prosecutors.

In contrast, insurrection is more difficult to prove. It would delve into the defendant’s state of mind and the intent of their actions. Were they in the Capitol because they were just following the crowd or were they there with the goal of overturning the election results and maybe taking members of Congress and staffers hostage, as “Zip Tie Guy,” who attended the riot with his mom, apparently planned to do?

Further, as is evident from many discussions over the past year, the question of whether January 6 was an insurrection or not takes on very political overtones. Based on my interactions, Republicans are likely to acknowledge that violating the Capitol and beating police are wrong, but they tend to waffle or deny on the question of whether those actions constitute an insurrection. If you’re a prosecutor and face the possibility of getting a jury filled with Republicans, it’s probably smart to pick the low-hanging fruit rather than overreaching for an insurrection conviction.

Ironically, many of the same people who deny that January 6 was an insurrection applauded Trump’s threat to invoke the Insurrection Act against BLM rioters back in 2020. The BLM riots were domestic violence, but they don’t necessarily meet the legal definition of a violent uprising against the government’s authority.

As someone wryly observed, the difference in the two uprisings is one of a coup d’etat vs. a coup d’Target.

Let’s also dispense with the claim that the rioters are political prisoners. Political prisoners are innocent people who are sent to jail on trumped up charges or no charges at all in retaliation for their political beliefs. This is not the case with the rioters, many of whom are on camera committing various crimes. Being jailed for a crime committed with a political motive does not make you a political prisoner.

In the end, the argument over whether the January 6 revolt was an insurrection is a red herring. It was a violent uprising against the constitutional order. Members of the Capitol mob committed a variety of illegal acts and they are going to jail for those actions.

In the process of attempting to attack Congress and Vice President Pence and to block the Electoral College from fulfilling its duties, the insurgents committed numerous crimes that include Obstruction of an Official Proceeding, Entering and Remaining in a Restricted Building or Grounds, and Disorderly and Disruptive Conduct in a Restricted Building or Grounds. Other, more violent demonstrators are often charged with Assaulting, Resisting, or Impeding Officers and Obstruction of Law Enforcement During Civil Disorder.

In the end, it is probably a good legal move to charge the insurrectionists with crimes that are easily proven to speed along the wheels of justice and deny those who would minimize the attack the possible victory of having a jury acquit on the insurrection charge. The situation is akin to not charging a murderer with a hate crime because the fact of the murder is indisputable but the killer’s state of mind is not.

But not charging the rioters with insurrection doesn’t mean that an insurrection didn’t happen. The selection of different charges does not change the facts of what happened on January 6 and legal definition of an insurrection.

What happened on January 6 was not only shameful and criminal, it was an insurrection by definition. No amount of rationalization will change that.

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