Capitol chaos and federal crimes: “a tsunami of stupid”

The best and smartest opinion — with legal citations — on Wednesday’s Capitol chaos comes from Kevin Underhill, on his LoweringTheBar.

Underhill’s main point is accurately summarized in his title. He goes on to name some of these idiots and tell us what has happened to them. (Nothing good — for them, that is.)

Warning: Underhill is a brilliant satirist (and probably a brilliant lawyer). So if you’re going to be offended at how funny it is when you separate a scary seditious mob into its individual dopey pieces, start your indignation now.Brr brr brr (I’m trying to do the sound of an engine starting up but think I’ve failed).

Dear Idiots: Please Keep Posting Pictures of You Committing Federal Crimes

Jan 08, 2021 02:41 pm | Kevin

I guess the worst thing about a mob of armed thugs storming the U.S. Capitol isn’t that it’s distracting me from the piece I want to write, namely the one about the naked Australian fugitive who had to be rescued from crocodile-infested waters the other day. But it is in fact doing that.

Just one of the many injuries that could’ve been avoided if the current semi-President had been removed in a timely fashion.

The only good thing I can think of about the tsunami of stupid that crashed into Capitol Hill on Tuesday is that so many of those idiots posed for pictures or appeared in videos that show them committing one or more crimes. In most cases, they are easily identifiable in these images, often because they posted the evidence against them to their personal social media accounts. As we have discussed many times before, that is a very stupid thing to do. So it isn’t too surprising that it happened so often the other day.

Just to get this out of the way, simply being part of a mob that breaks into the Capitol building is in fact a crime, and probably several crimes. For example, it shouldn’t surprise anyone that there are lots of things that are unlawful to do on U.S. Capitol grounds, and look! One of them is to “knowingly, with force and violence, enter or remain on the floor of either House of Congress.” 40 U.S.C. § 5104(e)(1)(B). It’s also unlawful just to be on the floor or in the gallery or meeting rooms or Congressional offices without authorization. 40 U.S.C. § 5104(e)(2). Those are misdemeanors, unless the violator was armed with a dangerous weapon (as some of these people were), in which case it’s a felony.

More significantly, conspiring to do this sort of thing in an effort to overthrow the government, or use force to prevent, hinder, or delay the execution of any federal law—and that was the whole point of attacking Congress on Tuesday, when the electoral votes were to be certified—is “seditious conspiracy” punishable by up to 20 years in prison. 18 U.S.C. § 2384. Granted, “sedition” charges are something we should be cautious about, and they shouldn’t apply very often, but then armed mobs only storm the Capitol every 200 years or so. And, for similar reasons, this fits within the definition of “domestic terrorism,” defined as criminal acts dangerous to human life that “appear to be intended … to influence the policy of a government by intimidation or coercion” (18 U.S.C. § 2331(5)), which again is the whole reason they were there.

Oh, there’s also the federal Anti-Riot Act (18 U.S.C. § 2101, up to five years), and I feel pretty confident in saying that the rioters violated that one. See 18 U.S.C. § 2102 (defining “riot”). Under federal law, it only takes three people to constitute a riot (in California and many other states, it only takes two), so that isn’t an issue.

And those are just some of the crimes they committed simply by being part of the riot. Of course individual rioters might have committed other crimes like willful injury to government property (18 U.S.C. § 1361); assault (18 U.S.C. § 113); or, let’s see, murder or manslaughter (18 U.S.C. § 1111–12), since they killed a police officer; and/or the state or D.C. equivalents. And there may well be self-posted images proving they did those things. But here I’m just talking about the many images of people being part of the mob, which under the circumstances are in and of themselves evidence of a crime. My point is, unless you’re pretty damn confident you’re going to successfully overthrow the government, and these idiots had zero chance of that, you probably shouldn’t make it easy to identify yourself while trying to do so. And yet, many did exactly that:

  • I guess it shouldn’t be surprising that at least one of those idiots is a lawyer. He posted a picture of himself on Instagram saying he had just been tear-gassed on Capitol grounds, which necessarily means he was part of the mob. At the time, Paul Davis was associate general counsel for Texas-based Goosehead Insurance. Now, he’s not.
  • Another idiot posed for a picture standing next to the idiot who wears the Viking hat. Standing next to that guy isn’t a crime, although I wouldn’t advise it, but the crimes above are crimes. And this person’s problem was that the picture he posed for, which showed him committing a crime, also clearly showed that he was wearing his company-issued work ID around his neck. At the time, he worked for Navistar Direct Marketing in Frederick, Maryland. Now, he doesn’t.
  • Richard “Bigo” Barnett, the idiot and white nationalist who posed for a picture with his feet on Nancy Pelosi’s desk, and then another one with a piece of her mail he stole, was easily located at home in Little Rock, according to reports today. At the time, he was free. Now, he isn’t.
  • Then there’s Derrick Evans, who was elected to the West Virginia legislature in November. Evans posted several videos to Facebook showing him among the mob, and he even narrated. “Derrick Evans is in the Capitol!” shouted Derrick Evans as they entered, thus proving Derrick Evans had just committed some crimes. Like Barnett, Evans was located easily, apparently hiding out at Grandma’s house. (“A woman saying she was his grandmother came out telling us to leave as he was put in a car,” the report says, and she did not seem happy with Trump for encouraging the boy.) At the time, Evans had not been charged with unlawful entry. Now, he has.

This list is expanding very quickly, according to this Washington Post report among others. As of Thursday, more than 70 people from at least 20 states had been arrested and charged. In addition to the idiots above, the report identifies several others who were hoist on their own electronic petards:

  • A Chicago real estate agent was fired after her firm received what it called a “tremendous amount of outreach” regarding her social-media posts about “storming the Capitol.” (She told the Chicago Tribune that she “had no idea destruction was happening,” a hilarious lie.)
  • A lieutenant sheriff in Texas is being investigated for her alleged participation, an investigation made easier by the multiple images she posted on Facebook showing her committing crimes. She is already being investigated for allegedly having an inappropriate relationship with an inmate, though hopefully she didn’t post pictures of that one.
  • Jenny Cudd, a small-business owner from Texas, posted a video on Facebook Live in which she boasted about helping to “break down Nancy Pelosi’s office door,” so she probably won’t be free for long.
  • The CEO of a Chicago marketing company is “on leave” after being arrested on Wednesday. He, too, had posted his face on social media. “I was in the wrong place at the wrong time,” he told a reporter, which is certainly true but not a helpful defense if you were there on purpose.
  • A Florida firefighter is on leave and under investigation after he was “spotted among the mob in photographs,” apparently having posed for pictures in Pelosi’s office as well. At least he didn’t post them himself, but like so many others, he knew they were being taken.
  • The same was clearly true of the man seen grinning widely while walking away with the Speaker’s lectern, in an image widely disseminated on social media. The grinner was swiftly identified as Adam Christian Johnson of Parrish, Florida. He too was back home on Thursday. According to the report, the Johnson home “was quiet on Thursday morning,” and in my favorite detail so far, “the street numbers had been removed from the residence.”

Here’s the thing: if you participated in an attack on the U.S. Capitol as part of a riot and/or seditious conspiracy, decided to commit other crimes while on the premises, and you posed for and/or posted images that show you committing such crimes, images that will spread like wildfire across the internet, taking the street numbers off your house is not going to solve your problem. But that seems to be about right in terms of the reasoning power at issue here. So, idiots, you should avoid doing the crimes at all, of course, but if you must, please continue to take credit for them on social media. I’ll try to do my part in getting you the attention you deserve.

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