In early January 2021, my work was disrupted by a text message from a friend: “They are storming the capitol.” It took me a moment to figure out who “they” were, but I soon made the connection. They were people gathered for the March for Trump rally in Washington, DC. Formally organized by Women For America First, the rally included a motley crew of people wanting to “Save America” by overturning Donald J. Trump’s defeat by Joseph R. Biden in the November 2020 presidential election. Joining run-of-the mill members of “MAGA nation” in forcefully entering the U.S. Capitol Building were followers of movements like Stop the Steal, the QAnon conspiracy, Proud Boys, Nick Fuentes’s Groyper Army, Boogaloo Bois, Oath Keepers, and III%ers.
As they were attempting to disrupt a meeting of Congress that was certifying Joe Biden’s Electoral College victory, many have called the event an insurrection.
But was it?
NOTE: I am not an attorney, nor did I stay at a Holiday Inn Express last night, so nothing in this post should be construed as giving legal advice or as constituting comprehensive and accurate interpretation of the law.
That those who breached the Capitol were inspired to do so by the outgoing president, his family, his personal attorney, and other political supporters at the various Save America and Stop the Steal rallies is important to consider. As are chants by some of “Hang Mike Pence,” the Vice President who was presiding over the Congressional certification, and the erection of a gallows outside the Capitol Building.
On the other hand, many of the rioters seemed to have no idea what to do once inside the Capitol, and those leading the charge were not carrying the number and kind of weapons they would need to take control of the legislative branch. They could delay the Electoral College certification, but I do not see a way in which they could have reversed it, even by force.
Whether what happened at the U.S. Capitol on January 6th was an “insurrection” depends, of course, on how we define insurrection. Insurrection is a crime according to the U.S. Code; unfortunately, the code itself does not define what insurrection means.
One online legal dictionary defines insurrection as: “A rebellion, or rising of citizens or subjects in resistance to their government.” By this simple definition — rising of citizens, resistance to government — I would say January 6th was an insurrection. But this definition may be too simple.
The entry on “insurrection” in the 11th edition of Black’s Law Dictionary (2019) quotes the Corpus Juris Secundum (1994): “Insurrection is distinguished from rout, riot, and offense connected with mob violence by the fact that in insurrection there is an organized and armed uprising against authority or operations of government, while crimes growing out of mob violence, however serious they may be and however numerous the participants, are simply unlawful acts in disturbance of the peace which do not threaten the stability of the government or the existence of political society.”
By this definition, it is less clear that what took place was an insurrection. Some of those involved were more (or less) organized. (We are likely to learn more about the organization in time). Others seem to have been swept up in the moment more like a mob. Furthermore, the participants were lightly armed with guns. As of today, only 2 of 125 individuals charged in federal court for crimes committed at the U.S. Capitol on January 6th are charged with gun crimes. (Of course, this says nothing of whether those on the FBI Most Wanted list or others who were not arrested at the time were armed.) The riot was surely an “uprising against authority or operations of government,” but did it “threaten the stability of the government or the existence of political society”? I think not.
So, in my view an appropriately qualified conclusion is that it was an act of criminal mob violence that included some insurrectionist elements.
To complicate matters further, the insurrection entry in Black’s Law Dictionary also quotes Charles G. Fenwick’s The Law of Nations or the Principles of Natural Law (1916): “If the anger of the people is directed particularly against magistrates or other officers invested with the public authority, and if it is carried so far as to result in positive disobedience or acts of violence, the movement is called a sedition.”
If I had more time to go down this legal rabbit hole, I might also explore definitions of “domestic terrorism.”