Will the Capitol Rioters Face Justice?

dare call them protesters. They were a riotous mob, insurrectionists, domestic terrorists, and Biden was not alone in blaming President Trump for inciting his followers. Lawmakers like Republican Senator Mitt Romney also placed to blame on Trump. What happened here today was an insurrection incited by the President of the United States. Joining me is an expert in national security law, former federal prosecutor Jimmy Garula, a professor at Notre Dame

Law School. Clearly, the Capitol police were unprepared, with all the notice, some from Trump himself, with much of the nation bracing for what might happen, and with threats of violence on social media. Should they have been prepared for this, they had forewarning, literally weeks in advance. I mean Trump on Twitter had notified the world that he was again recruiting as followers to come to Washington, d C. On January six, and he said, you know, be looking out.

This is gonna be like something you've never seen before. It's going to be powerful. I mean, so it was clear that again he was recruiting his followers to come to d C for this event, and then of course at the rally before the actual assault on the Capitol Building, he's firing up his supporters and telling them to take back America. And in order to do so, you have to be strong. We have to use act with strength, which is code words for violence. So there was plenty

of time to prepare. And it's inexcusable. I mean, this should never have happened in America. And thank god it wasn't worse than it actually was. I mean, had these protesters have been more heavily armed when they took siege of the Capitol Building, we could be talking about today the killing of members of Congress, the killing of senators,

violence a much larger scale than what was witnessing. This can never be permitted to happen again, and I'm hopeful that the new administration immediately initiates an investigation or commission to get to the bottom of this and to termine what went wrong and to ensure that it never happens again. Would you call this an insurrection, an attempted coupe? What would you term this? Well, it's certainly an insurrection. You know, it certainly falls with in the seditious Conspiracy Statute. It's

an act of sedition. It was an attack either to overthrow the government by violence or to prevent the enactment of laws by violence, which is also prohibited by the sedition conspiracy Statute. These people wanted to disrupt Congress's fulfillment of their constitutional duties under the Twelfth Amendment. That's what was driving them. The timing of this wasn't accidental. You know, their presence on January six, they're storming the Capitol Building

while Congress was in session undertaking its constitutional duties. That

was not a coincidence. This was an attempt to disrupt, to prevent them from fulfilling those constitutional obligations, from certifying the electors and then certifying Joe Biden is an ex president of the United States, and I would say further there, it was certainly anti Democrat because one of the principal cornerstones of our democracy that we have cherished over the last two hundred plus years is a peaceful transfer of power. There's a range of crimes the rioters could be charged with,

from misdemeanors to felonies, from vandalism to sedition. Does it seem like they're going to be charged with the lower level crimes vandalism, breaking and entering, etcetera, rather than sedition. Well, I would say certainly everyone that can be identified who is inside the Capitol Building should be charged under the Anti Riot Act because this clearly satisfies the requirements of

the statute. I mean, these are people that traveled in interstate or used an interstate facility for the purpose of engaging in a riot, for either inciting a riot or participating in a riot or facilitating acts of violence, which

is what is required under the statute. And fortunately, many of these individuals were caught on video inside the Capitol Building and the FBI and other law enforcement agencies are going to be able to identify many of these perpetrators quickly, and once they're identified, they should be charged by the FBI and prosecuted by the Apartment of Justice, the U. S.

Attorney's office. I mean, it could be the U. S. Attorney's offices in the districts where these individuals reside, or in the district of Columbia where the offenses were actually committed. On the question of sedition, I think here we're talking about again a conspiracy, and I think a conspiracy can be proven through their concerted action. And their concerted action, their intent again was to buy the use of violence to prevent, hinder or delay the execution of any law

of the United States. That's language from the Seditious Conspiracy Statute, to prevent, hinder or delay the execution of any law of the United States. And the law of the United States that they were attempting to prevent was the Twelfth Amendment, was the certifying of the electors, the recognizing of the electoral votes, and certifying of the president. I want to get your take on why the Capitol police allowed the

rioters to leave the Capitol building. We saw a video of rioters walking out of the building yelling, threatening to come back, with a police officer actually holding the door open for them. No, it was it was certainly at the very least a dereliction of duty. I can understand, you know, the argument that the Capitol Police felt that they were overwhelmed, that they didn't have sufficient numbers to

prevent this assault on the Capitol building. That's one thing, But to actually be opening the door, assisting them as they're leaving, not attempting to prevent any of this illegal conduct that was taking place. These are officers, again, that took an oath to defend the constitution to enforce the law. They violated that oath. So this isn't simply a question or any shoe of the government wasn't adequately prepared to

deal with the crisis. I think that there are some officers that have to be held accountable for dereliction of their duties and responsibilities as law enforcement officers. It's shameful. It's nothing less than shameful. Beyond that, there was video of the Capitol Police letting writers get past the barricades, moving the barricades. Even now, people will look at that and say, was there an order from above that led them to that course. It does raise an interesting question

whether there was an order. Here's the other aspect of that too. If you look at the videos and you see some of these protesters. They didn't seem intimidated or all are worried by the presence of the law enforcement officers of the Capitol Police. They were very confident, they were very smug, and the action that they were taking, they weren't threatened at all feel threatened at all by

law enforces. So that makes you wonder. That raises a question was there um order, either explicit or implicit, for the Capitol Police to stand down, to not enforce the law, to not arrest these individuals. I mean I watched literally two or three hours of footage on television and did

not see a single arrest. Now we're told after the fact that there were, you know, individual arrest I I witnessed hours and hours of illegal activity going on and did not see a police officer, a law enforcement officer,

arrest a single individual. That investigation should result in the senior members supervisors of the Capitol Police being fired an individual, lower level officers being fired at a minimum, At a minimum, our Capitol building, this symbol of democracy, was desecrated in a way that should never have ever been permitted to happen in this country, and someone has to be held

accountable for that. There's been a lot of commentary about the marked difference in the way the Trump administration handled the Black Life Matters protests this summer with federal agents and riot gear, tear gas, rubber bullets. That's a fair point to raise because we saw over the summer the use of force that was employed against peaceful protesters in Lafayette Square, and again, as you stayed at tear gas, rubber bullets, etcetera. We didn't see that here. And this

was an assault on the Capitol building. It raises questions, you know, had these been block protesters, would they have ever been permitted to get that close to the building, let alone go into the chambers of the Senate, go into the chambers of the House of Representatives. I am confident the Capitol police would have found some way to

restrain them. They wouldn't have made it halfway up the steps of the Capitol Building before they were confronted with rubber bullets, tear gas, and even more lethal use of force. And so that it's another issue that needs to be addressed in this inquiry. Is this a dual standard of justice here? So if you're a block protester, you're treated one way, but that if you're a white protester, and we all saw for ourselves that the these protesters are

white protesters, they're treated differently under the law. Our democracy cannot witness and embrace a dual system of justice that depends on the color of the person skin. The articles of impeachment have already been drafted. How Speaker Nancy Pelosi has been calling on Vice President Mike pens to invoke the twenty fifth Amendment to remove President Trump from office after the attack on the nation's capital by pro Trump rioters, and Pelosi says the House will move forward on articles

of impeachment if nothing is done. A very dangerous person who should not continue in office. This is urgent. This is the emergency of the highest magnet too. I've been talking to national security law expert Jimmy Garula, a professor at Notre Dame Law School. Top Democrats are calling on Vice President Pence to invoke the amendments. It's never been used to remove a president. Do these circumstances fit Amendment?

I think they do. It's actually Section four of the Amendment that's applicable here, and that authorizes the president and the majority that's referred to as the principal officers basically would be the cabinet members, and in this particular case, it would require thirteen cabinet members along with the vice president, to conclude that the president is unable to discharge the

powers and duties of his office. And so here I think you can make a compelling case that over the last two months, the President Trump has been obsessed with the presidential election and his defeat, and his behavior during that period of time has become erratic. He's unstable. He has advocated his responsibilities with respect to the coronavirus pandemic, He's advocated his responsibilities regarding a recent hacking attack by

a Russia. So I think the prerequisite regarding his inability to discharge his powers and duties that's required under the amendment can be met. Once that is communicated in writing to the leaders of the House and the Senate, then the vice president immediately assumes the duty as the acting president. But that doesn't end it. I think President Trump would immediately contest that, and then it would fall back on the vice president to make a further determination of the

president's lack of capacity to hold office. And I think that's probably about as far as we're going to get within that short period of time. But interestingly, that would deprive the president of his ability to stay in office for the balance of his his trump. Now it seems highly unliyly that Penn's is going to involve the amendments. So then we come to the Democrats threats of a second impeachment. How much of the process could they get through in the time left till its term ends. It's

finally unlikely that in that period of time. First of all, the publican members of the House are going to be fighting this, and they're going to be resisting this at every step, and so I think it's highly unlikely in days that there would be articles of impeachment that are submitted to the House, that are debated. You know that there witnesses that are called, and then a vote concluded on those articles of impeachment, and then of course that

again would just be the charging document. Then it would be up to the Senate to the side. Again, it requires the two thirds vote of the Senate to actually convict. It's just not practical, it's not feasible for all of that to happen. I think what's more realistic, again, if Vice President hence took the initiative and again was able to get the support of thirteen cabinet members that he could become acting president and probably delay the final process

here through the balance in the president's term. Thanks Jimmy. That's Professor Jimmy Garoule of Notre Dame Law School. The votes in Georgia have been counted not once, not twice, but three times, and they confirmed that President elect Joe Biden beat President Trump by eleven thousand, seven hundred seventy votes.

But in a sixty two minute call last Saturday, Trump pressured Georgia officials, including the Secretary of State, to find thousands of votes and recalculate the election results to flip the state to him, just enough to pass Biden by one vote. So, look, all I wanna do is this. I just want to find uh eleven thousand, seven d eighty loaves, which is one more that we have. The people of Georgia are angry. The people of the country are angry, and there's nothing wrong with saying that you know,

um that you've recalculated. Georgia officials stood firm by the election results, joining me as former federal prosecutor Elie Hoenig of Lowenstein Sandler. The first broad question, did Trump break the law during this call? So I think the short answers is quite possibly, maybe meaning towards probably. You know, we don't have all the facts, but the call itself

is a pretty darned good starting point. So both federal law and Georgia law are similar in that bottom line, They say it is a crime to try to influence an election official to count ballots that we're not actually cast. Now, clearly Donald Trump is trying to influence and then some these Georgia Secretary of State Rapidsburger's overtly pressuring him, even threatening him with the potential of criminal prosecution of his own.

And he's also clearly trying to pressure the Secretary of State to count votes in his favor and votes that if you are tethered to reality, you know we're never cast, right. I mean, every source that has a pined on this, from d o J to DHS, two dozens of courts have said there was no such fraud. Perversely, I guess the best defense of Donald Trump here would be he actually believes, truly believes that he got those votes, Because

if he truly believes he had those votes. It's not a crime to ask an official to count votes that you truly believe. We're You're You're not asking for some fraud to be committed. If in your mind you truly believe those votes were for you. Now, that would require one to believe Donald Trump is delusional. Perhaps he is. And I also think it's a little bit of intention with the words Trump uses on the call. If I'm a prosecutor, going back to my prosecutorial role, I would say,

why does he use the word find? We need to find these votes? That to me is a little different than we need to have a full counting of all the votes that were actually cast. And that number, remember Donald Trump says we need exactly eleven thousand, seventy or whatever, one more vote than he needed. That also is very conspicuous and different from we need to count all the votes. So I think at a minimum, prosecutors have to take a look here, investigate, and sit down and make a

very hard decision. I want to talk about some problems that may occur because the call is very meandering. He goes from topic to topic, He skirts the issue a lot, and he keeps saying over and over that he won the election. So is that a problem? Well, so meandering. Absolutely, it's not a problem that he never says I would like you to perform this illegal act. I mean, that's

certainly not required. And yes, it does complicate it though that Donald Trump repeatedly he seems like he's almost reading off of a list or something of all these wild claims that have really come from Twitter or you know, far far right wing media and I don't mean Fox News, I mean far the right wing than that. And that would be the defense, if I'm done Trump's defense lawyer, I would argue, he truly believes that he won this election and that he's entitled to have the Secretary of

State recount these votes. And I think the argument is that may be a bad look, that may say something bad about his own mental stability, But legally it's a defense because again, if you truly believe that votes were cash for you, and you ask officials to count those votes, that's not a fraud. That's not a crime. That would be the difficulty in prosecuting this case, and that would be something to prosecutors would need to sit down and

sort of puzzle through in meticulous detail. Is his ignorance of the law and excuse he says, I didn't know that was a problem. No ignorance of law. It's a motto, it's a saying, but it's true. Ignorance of law is not a defense. You don't have to know specifically that this exact conduct is prohibited by statute. You have to know general link that it's wrong. I do want to throw in one other potential wrinkle here. Clearly, Donald Trump

threatens Rappensburger with criminal sanctions of his own right. There's that weird passage where Trump says, what you're doing is actually a crime, Mr. Happensburger, and paraphrasing here, it is a crime, a federal crime, an estate crime. To threaten somebody as part of an extortion, as part of trying to get something, you want to threaten somebody with unjustified criminal charges. Now, there's no argument that Rappensburger committed a crime of any sort, but Trump uses that as a

bully tactic. There is an interpretation of the extortion laws that could include that, and I think prosecutors ought to look at that as well. Do you really think that the threat is that explicit? He talks about a big risk of potential criminal charges. Do you really think that the threat is explicit enough. Well, that's the question. It's not as explicit as a prosecutor would like it to be, right, it's not. If you don't do this, I will go to FBI and we will indict and prosecute. That would

be an example of the easiest case. This fall somewhere in the middle, And that's why I think that the exact verbiage is important. You know, he does say, you know, he gets fairly explicit about you you're committing a crime, and even has the weird exchange where Trump says something like I'm putting you on note, I'm notifying you right now, which is I think close to the line. But I agree it's not as explicit as other extortions that I've seen, for example, in the mob world. But that also doesn't

necessarily mean he's in the clear either. Explain the willfully requirement in the federal law. So will so he essentially means with intent to commit a crime, or to commit the elements of the crime. So that gets back to sort of the state of mind. Is the president in the deepest recesses of his mind and by the way. This is the difficulty of any intent based crime. Right, So for example, a robbery of a seven eleven is

not an intent based crime. You see someone coming with a gun in the mask and demand money, that's a robbery. But when you get into things like frauds, then you have to get into the mind of the person and did they really know what they were proposing. Was they fraud or was they llegal or did they actually honestly believe that they were entitled to this or that it

was legitimate. So that's a difficulty here. And you know, if I was investigating this, I would start with the tape itself, Like I said, I would scrutinize the words on the tape, but I'd also i'd subpoena or want to speak with those around Donald Trump, the other people on that call. Is there evidence that before that call or after the call he said to somebody, look, we're gonna bend this guy to our will, or is there evidency said things that evidence that he doesn't truly believe

that he was. But there's been reporting out there that Donald Trump understands that he lost this election, but he's doing this for show, or he's doing this to rally donations or support, or to keep themselves relevant. If you could find a couple of witnesses to say, I spoke with Donald Trump, he told me I know I lost this, but just I'm playing this game here, right, It's something to that effect I think would be a significant piece

of evidence. And again that goes to my point of why prosecutors and to at least dig in here and not just sort of glide past it. Two members of Congress referred the case to the FBI. Does that mean the FBI will actually do an investigation? No, it does not. There's this common misconception out there that there's some magic to a referral like criminal referral. There's not. All it means is and I've gotten referrals as a prosecutor from any source you can name, from members of the public,

from politicians, you know, you name it. All it means is somebody has asked the FBI or whatever your law enforcement agency to take a look. Now, referrals are taken seriously, and depending on both the source of the referral and the apparent seriousness of the conduct and the support for the conduct, referrals absolutely can lead law enforcement agencies and prosecutors to open cases to take a look. So it's significant,

but it doesn't find anybody to do anything. The next question is, let's just suppose that enough evidence is found, who would prosecute with the Justice Department under President elect Biden, who said that he is not going to try to influence that the Justice Department is there to do its job. But are they going to want to start their administration by prosecuting a former president? That's a great question, at

a very important question. Let's start with focusing on the federal authorities here, d O. J Joe Biden has done one thing that I think is really important and good, and one thing that I have an issue with what he's done that I think anybody should approve of, is he has said publicly and clearly, I will not get involved in the prosecutorial decisions of my Attorney General. That will be entirely up to the new a G. I

don't get involved. That That is right, That is correct, That is as it should be, that something Donald Trump himself frequently violated. What I don't approve of is the fact that Joe Biden reportedly told several people around him, and this was reported by NBC News. They say they had five sources saying this is a few weeks ago, that Joe Biden has no interest in having his d J go down this rabbit hole of Donald Trump investigations, that he does not want to see his d o

J go that round. Now, Joe Biden has been around long enough, you know, forty eight years, that he understands that if he's going to make a comment like that to five different people, it's going to get out there. And so I don't like the fact that Joe Biden is doing that, and in so doing is putting a

thumb on the scale of what the attorney general will do. Now, as a practical matter, if you're the new attorney general, if you're going to charge and prosecute a case against the former president, you have to understand that will consume all the oxygen, all the attention, all the focus on everything else you do um and probably everything else the presidential administration does until that actual trial happens and it's

over with. We're talking a year, eighteen months. That is an enormous distraction, That is an enormous price to pay. I fully understand that, and I expect the new A G. To to to factor that in. On the other hand, I think it's really difficult that the new Attorney General and new d o J to just say we were not even going to take a look. It's just too much of a hassle. It's just too difficult. We're not even going to bother with this that I don't approve

of either as a prosecutor. Look, part of your job as a prosecutor, a big part of your job is to make difficult decisions and to do things that ruffle feathers. And if the job of a prosecutor was to just look for the path of least resistance, then well, beyond Donald Trump, there's plenty of powerful people who would never be investigated. There's plenty of wealthy people, well connected people who you would just say, too much trouble, people might resist,

it might be too much of a circuit. That to me, is not the job of a prosecutor. So I will say this, at a minimum, I believe d o J has a duty to investigate this see what they find. But I do appreciate that it's a very difficult charge to bring. And I also do appreciate that it's unlikely that d o J ultimately will charge the president. There may be a slightly different calculus for state level prosecutors, but that's how I look at d O J. What do you think of the fact that the U S.

Attorney Atlanta resigned one day after this phone call? Yeah, it's in some respect, it's suspicious in some respect. That's not the timing everything that's happening in Georgia. You can it's consistent with I guess I'll say, we don't know what's going on, but it's consistent with he was asked to do something that he wasn't comfortable with doing and that caused him to resign. It also is unusual that the U. S. Attorney would resign with essentially no notice.

Now what's not unusual is this is resigning season, um and it always is. Whenever you're about to have a change in administration, especially from one party to the other, all the U. S. Attorneys start resigning around now um or you know, up to January twenty and then they're replaced fairly quickly by the new administration. That's the way

things go. But usually the way that happens is the U. S. Attorney, for example, in New Jersey where I live put out a public statement weeks ago, and he said in January five will be my last day. Um, you know, two weeks notice, three weeks notice. That's normally the way it goes. So it is unusual to me that this has happened with essentially no notice. And also one of the lawyers who was representing Trump on that call, Clio Mitchell, resigned from her law firm. Look, obviously there was a lot

of public pressure. I think the public was by and large revolted by what was heard on that call. And the lawyer Cleedo Mitchell, is part of it, and she's on board with what Donald Trump's doing. And I think most worrisome from my perspective looking at her as an attorney, is she is completely espousing and supporting these conspiracy theories, these theories that have no basis in fact. And you know,

it's a difficult thing. I don't necessarily believe in going after someone's employment or profession or vocation if you disagree with what they've done. But there's also a line here that lawyers are not the cross of just spinning utter fantasy. Your duty bounds to defend a client, including clients who may be guilty of things, but it is another matter altogether to affirmatively promote outright false statements and fictitious conspiracy theory.

So that was ultimately the consequence for this attorney. Thanks Ellie. That's former federal prosecutor Ellie Hohenick. And that's it for the sedition of the Bloomberg Lawn Podcast. I'm June Grosso. Thanks so much for listening, and remember you can always get the latest legal news on our Bloomberg Lawn podcast. You can find them on Apple Podcasts, Spotify, and wherever

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