Public officials from former Vice President Mike Pence on down have sung a consistent refrain since a mob attacked the Capitol on January 6: Those involved should be prosecuted to the “fullest extent of the law.” For those implicated in the murder of the Capitol Police officer Brian Sicknick, the penalties are obviously severe. Murdering a federal official carries a life sentence and, depending on what is proven at trial, could carry the death penalty.
For the others who swarmed the Capitol, though, the standard penalties could be underwhelming. The federal statute most on point, which is often used against protesters who disrupt congressional hearings, carries a maximum six-month sentence. The government-property statute has been used when protests get violent, but under that law, those who vandalized the Capitol would also face, at most, ten years’ imprisonment. Even those who physically clashed with Capitol Police face a maximum punishment of only eight years, so long as they didn’t use a weapon.
Many of these punishments, well below the mandatory minimum someone would typically face in federal court for growing a small plot of marijuana, are out of step with the gravity of what transpired in Washington, D.C. Evidence is still coming in, but what we know shows that the attack on the Capitol was not a mere disruption of government business. It was a coordinated siege on the heart of our democracy.
The acting U.S. attorney general for D.C. has suggested that his office is exploring sedition charges. But if prosecutors are truly serious about punishing those who attacked the Capitol to the fullest extent of the law, they will treat the attack as an act of terrorism.
Although “domestic terrorism” is not a standalone federal crime, the United States Federal Sentencing Guidelines allow prosecutors to apply a “terrorism enhancement” to nearly every federal crime. Prosecutors have used this enhancement and the extraordinarily severe penalties it carries against any number of ethnic, religious, and political minorities over the past 25 years. Failing to apply it to those who stormed the Capitol in an effort to violently disrupt the peaceful transition of power simply because most are white and regard themselves as “patriots” would be deeply unjust.
Chuck Schumer called the attack on the Capitol “domestic terrorism” as soon as he retook the floor of the Senate, and Joe Biden echoed the point the following day when he announced his nomination of Merrick Garland as attorney general. Thus far, however, many in the Trump administration have been notably reluctant to use those words, a reticence that has troubling echoes of the past four years.
When a white supremacist mounted an ISIS–style car attack on civil-rights protesters in Charlottesville, Virginia, for example, many politicians denounced what happened as “domestic terrorism.” Former President Donald Trump’s response was at best cagey. “Well, I think the driver of the car is a disgrace to himself, his family and his country. And that is—you can call it terrorism. You can call it murder. You can call it whatever you want.” This equanimity contrasted with his lack of hesitation two days later in calling a similar car attack in Barcelona, this time by a Muslim, a “terror attack.”
It would be tempting to chalk up Trump’s allergy to using the word terrorism to describe violent nationalists to his inability to criticize anyone who supports him. But limiting the definition of terrorism to the actions of people from “over there,” particularly the Muslim over there, has been a feature of right-wing politics since terrorism first entered federal law. In fact, one of the only times Republicans wax eloquent on the danger that the concept of terrorism poses to civil liberties is when terrorism has threatened to curtail their constituents’ gun rights.
The first modern anti-terrorism laws were passed in the 1980s in response to the hijackings of TWA Flight 847 and the cruise liner MS Achille Lauro. Since that time, they have grown in scope and severity, but have always been limited to international terrorism. This constraint was challenged during the Clinton administration when the federal government found itself in routine confrontation with self-styled militias. The 1995 bombingof the Alfred P. Murrah Federal Building in Oklahoma City, in which 168 people were killed, including 19 children in a day care, was a watershed tragedy and prompted the enactmentof the Antiterrorism and Effective Death Penalty Act of 1996. But AEDPA—a still-controversial law due to a number of its “tough-on-crime” provisions—did little to address domestic terrorism directly and created no domestic-terrorism crime.
cSome have argued that the attack on the Capitol shows that it is necessary to make domestic terrorism a standalone federal crime, supported by all of the national-security tools currently used to combat international terrorism. But no new laws are needed for prosecutors to treat the attack on the Capitol as the act of terrorism that it was. Although Congress assiduously avoided creating a standalone domestic-terrorism crime in 1996, AEDPA made terrorism of any kind one of the most significant enhancements in the U.S. Sentencing Guidelines.
The enhancement applies to anyone who commits any one of a list of more than 50 federal crimes with the intent “to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” That list includes crimes that nearly everyone who stormed the Capitol either committed, attempted to commit, or conspired to commit. And crucially for those who might have helped incite or orchestrate the attack on the Capitol from afar, it also applies to anyone who commits any other serious federal crime with the intent to “promote” such terrorism. In the 25 years that the terrorism enhancement has been on the books, federal prosecutors have used it to add decades to the sentences of Occupy protesters, anti-abortion-rights activists, militant environmentalists, self-styled militia members, and, in the large majority of cases, Muslims who often did far less than those who attacked the Capitol.
As a matter of law and rhetoric, terrorism fits the kind of political violence seen in the nation’s Capitol, violence whose intent and effect is to leave an indelible trauma on the collective memory. With the terrorism enhancement, the potential sentences faced by nearly everyone who had a role in the attack on the Capitol are astronomical. Where someone convicted of destroying government property would ordinarily face up to ten years, the terrorism enhancement raises the minimum sentence to more than 17 years. Anyone who physically pushed their way past a Capitol Police officer could be looking at a minimum of 20 years. Anyone even indirectly implicated in the murder of Officer Sicknick faces life. If that sounds harsh, that is the cold reality of the nation’s terrorism laws.
In practical terms, most of these cases are likely to plead out. Because the application of the terrorism enhancement when bringing charges is largely left to prosecutorial discretion, its most significant role will likely be in leveraging cooperation from potential witnesses. For those who feel that they made a mistake and found themselves swept up in the day’s events, the prospect of more than 17 years in prison will be a strong incentive to help prosecutors build their cases against those members of the mob who were truly attempting to orchestrate an insurrection or implicated in murder.
The ultimate decision on whether to treat the attack on the Capitol as terrorism will fall to the incoming attorney general, Merrick Garland. Garland made his bones leading the prosecution of Timothy McVeigh for the Oklahoma City bombing. Whether he decides to use that event’s most significant legal legacy remains to be seen. But doing so would be to prosecute to the “fullest extent of the law.”
