A Legal Analysis of the Capitol Riot and What Constitutes ‘Insurrection
Everyone has an opinion on the people who stormed the Capitol Building on January 6, 2021.
Republicans think they’re at best freedom fighters, and at worst, mere trespassers.
Democrats think they’re at best idiots, at worst insurrectionists. It’s not a crime to be an idiot. However, being an insurrectionist could have serious consequences.
Here’s how federal defines it:
“18 U.S. Code § 2383 – Rebellion or insurrection: 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.”
So to be found guilty of insurrection, it needs to be shown that you… engaged in insurrection? Well, what does insurrection mean in a legal sense?
“Insurrection” has a specific legal definition.
The state of Georgia says “a person commits the offense of insurrection when they combine with others to overthrow or attempt to overthrow the representative and constitutional form of government of the state or any political subdivision thereof when the same is manifested by acts of violence.”
Additionally, a district court in Colorado in the case Anderson v. Griswold defined an insurrection as a public use of force or threat of force by a group of people to hinder or prevent execution of the Constitution of the United States.
Here, the court held that President Donald Trump did in fact engage in insurrection based on his long history of endorsing political violence, his false claims of election fraud, and his speech at the January 6, 2021 rally directing supporters to the Capitol. However, the Court held this law did not apply to Trump because the Presidency is not an “office under the United States” and the President is not an “officer of the United States.” The law specifies that it must be an officer of the United States that incites the insurrection, so Trump was in the clear.
That dealt with someone inciting a riot. The January 6ers are only accused of engaging in insurrection. So were their actions that day “ a public use of force or threat of force by a group of people to hinder or prevent execution of the Constitution of the United States”? Well, as with so many legal issues, it depends.
It was a public use of force, that’s for sure; just ask the window repairmen at the Capitol Building. Were they trying to hinder or prevent execution of the Constitution of the United States? Well, that’s a bit murkier.
By now, it’s been established in multiple courts of law (as well as in verifiable fact) that Joe Biden was the rightful winner of the 2020 election, and that any claims made by Donald Trump and his disgraced, now-disbarred attorney Rudy Giulianni about shenanigans afoot in the vote count were based on fiction and fantasy. However, that wasn’t legally established at that point; most, if not all, of the J6ers were under the impression that Trump had won the election. So, in their minds, it was the election certification that was hindering and preventing execution of the Constitution. They thought Donald Trump was the rightful winner, and that Joe Biden being declared the winner was the real insurrection.
To be convicted of insurrection, do you have to know you were committing insurrection? And how hard to do you have be, umm, insurrecting before it meets the “insurrection” standard. Some of the people charged for their actions on January 6th have had the courts make that decision.
In the case of United States v. Grider, the defendant Christopher Grider was found guilty of participating in the insurrection of January 6, 2021. The court found that Grider was a leader during the insurrection and engaged in acts of physical violence in the United States Capitol buildings.
In United States v. Griffith, the defendant Anthony Griffith, Sr., was found guilty for his participation and actions at the insurrection of January 6, 2021. However, the specific charges for which these individuals were found guilty were not explicitly stated as insurrection. The charges included entering and remaining in a restricted building, disorderly and disruptive conduct in a restricted building, violent entry and disorderly conduct in a Capitol Building, and parading, demonstrating, or picketing in a Capitol Building.
So the courts have said that Trump was inciting an insurrection, but the law didn’t apply. They found that a leader of the chaos on January 6th was guilty of insurrection. They found that someone who merely participated was not guilty of insurrection, but was guilty of some other offenses. Is there a clear standard here? It doesn’t appear so, but as more and more of the J6ers stand trial, we may have an answer as to when exactly somebody engages in insurrection.
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