Prosecuting Trump for the Capitol Riot

The riot at the Capitol on January 6 has led to many calls for President Trump to be removed from office. Regardless of whether that happens, there needs to be a criminal investigation into the events leading up to the riot, and in particular into Trump’s role in inciting the riot. Criminal charges against Trump and the others involved may well be appropriate.

I’ve previously resisted calls for criminal investigations of Trump once he leaves office. The risk of criminalizing policy differences requires that we be very cautious about prosecuting an outgoing president. Part of what led so many to recoil when Trump led chants of “lock her up” at his rallies was the specter of a president using his Justice Department to pursue political enemies. DOJ has already been severely damaged during the Trump administration, and a criminal investigation of Trump by the Biden DOJ will result in further charges of politicization. And most of Trump’s misconduct in office, however odious, was likely not criminal.

But Trump inciting a mob to storm the Capitol is on a whole different level. There is no possible way to  characterize Trump’s actions as the legitimate exercise of his presidential authority; no risk that we would be criminalizing mere political disputes. This was an assault on our most cherished institutions – on our democracy itself. It requires a thorough criminal investigation, followed by any appropriate indictments.

The Riot at the Capitol

On Wednesday, January 6, Congress convened for the formal count of the electoral college votes that would officially certify Joe Biden as the president-elect. In the weeks leading up to the certification, Trump and many of his supporters made repeated unfounded allegations of voter fraud and claimed the election had been “stolen” from him. They filed dozens of lawsuits around the country alleging problems with the election. These claims were uniformly rejected by both state and federal judges, including judges appointed by Trump.

In the days leading up to January 6, Trump exhorted his millions of followers to show up in D.C. to protest the “fraudulent” election. For example, on December 19 he Tweeted: “Big protest in D.C. on January 6. Be there, will be wild!” 

On January 6, Trump held a “Save America” rally at the White House, addressing the large crowd that had gathered in response to his pleas. In a speech lasting over an hour, Trump used incendiary language, repeatedly urging the crowd to “fight” to save the country. He exhorted them to march down Pennsylvania Avenue to “stop the steal” and prevent the Democrats from “fraudulently” taking over the country. Others spoke as well, including the president’s son Don Jr. and Trump’s personal attorney, Rudy Giuliani, who urged the crowd to settle the dispute over the election via “trial by combat.”

Following the rally the crowd marched  down Pennsylvania Avenue to the Capitol. They overwhelmed the Capitol Police and broke into the building — breaching barricades, scaling walls, and breaking down doors. Once inside they broke windows and destroyed other property. They threatened the safety of members of Congress, who were forced to cower behind locked doors. Some in the crowd were armed or carried explosive devices.  Some carried nooses and chanted slogans crying they should hang Mike Pence or assassinate Nancy Pelosi. Some carried zip ties, suggesting they might intend to take prisoners. One capitol police officer died after the rioters beat him in the head with a fire extinguisher. One rioter was shot and killed by the police.

It was six hours before law enforcement was able to re-take the building. In the days since the riot it has become clear that it’s very lucky more people were not injured or killed, including members of Congress or the vice president.

The Relevant Criminal Statutes

The seditious conspiracy  statute, 18 U.S.C. § 2384, makes it a crime for two or more persons to conspire to oppose the U.S. government by force, or “by force to prevent, hinder, or delay the execution of any law of the United States.” It provides a penalty of up to twenty years in prison.

The crime of rebellion or insurrection, 18 U.S.C. § 2383, provides a ten-year penalty for anyone who “engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto.”  It also provides for disqualification from holding public office in the future.

Under either of these statutes, the prosecution argument would be that Trump, through his  rally and conduct leading up to the rally, conspired with others to use force to delay the “execution of [a] law of the United States” – the electoral certification by Congress. In the words of the rioters that Trump adopted, he was trying to “stop the steal.” Through the same actions he also took part in a rebellion or insurrection against the authority of the United States and gave “aid or comfort” to those who stormed the Capitol.

Those who actually broke into the Capitol may face a number of other charges as well, including unlawful entry, destruction of property, assault, and homicide. Many of those people are currently being rounded up by law enforcement, having helpfully posted pictures of themselves committing the crimes on social media.

The First Amendment Defense

Trump’s most likely defense, one already raised by a number of legal commentators, is that his speech to the mob is protected by the First Amendment. He didn’t intend for the mob to riot, this defense would argue, he merely wanted them to protest outside the Capitol to try to influence the lawmakers inside. Accordingly, his address to the crowd was protected political speech and cannot form the basis of a prosecution.

The Supreme Court has held that speech intended to incite imminent violence is not protected by the First Amendment, but the category of speech that may be prosecuted is very narrow. In the leading case of Brandenburg v. Ohio, the Court held that speech may lawfully be criminalized only if it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” In Brandenburg  the Court threw out the conviction of a Ku Klux Klan member for a rally speech at a farm in Ohio. The speech contained derogatory language about Jews and African Americans and vague references to possible “revengeance” against the government if it did not stop oppressing whites, but called for no immediate action.

The Brandenburg analysis can be broken down as follows: 1) was the speech likely to produce lawless action; 2) was that action imminent; and 3) was that the speaker’s intent. Numbers one and two here seem pretty clear. The speech was not merely likely to produce lawless action, it did in fact produce lawless action. And unlike the speech in Brandenburg itself, Trump’s speech did call for imminent action: he directed the crowd to march to the Capitol as soon he was done. The primary legal issue then becomes whether what happened was really Trump’s intent.

Evidence of Trump’s Intent   

Intent in a criminal case is usually proven by circumstantial evidence. Trump’s speech is full of references to the need for the crowd to “fight like hell,” to be “strong,” and to stop the Democrats from “stealing” the election.  On the other hand, his defenders can point to the fact that he never explicitly called for the crowd to “storm the barricades,” and that he inserted a couple of references in the hour-plus long speech to “peaceful protest.” The defense would argue that the violent phrases were just colorful metaphors. Political speech, they would note, is full of references to “fighting” for various rights. That can’t be construed as a call for actual violence.

Commentators who defend the speech as protected by the First Amendment tend to focus on simply the speech itself, isolating a few lines and arguing they don’t amount to incitement. But Trump’s intent can’t be determined one way or another by looking only at the text. Context matters, and we can’t parse Trump’s intent by looking at the speech alone any more than we can parse the intent of the entire speech by looking at a few isolated passages.

Trump’s speech and intent first have to be evaluated in the context of the events leading up to the rally. It was preceded by weeks of Trump whipping up his supporters to help stop the “fraudulent” election. Right-wing social media was full of memes issued in response, urging his supporters to show up and “fight” for Trump.

The speech also has to be evaluated in the context of the rally as a whole. Others speaking at the rally used even more explicit violent language, such as Giuliani’s call for “trial by combat.” And the rally was taking place immediately prior to an actual march to the Capitol by the crowd. This is tied to the “imminence” issue – a similar speech using similar violent language directed at Congress but given at a campaign rally in Florida, for example, would not be nearly as menacing. Here the crowd was in a position to act immediately in response to Trump’s words — and did so.   

The nature of the crowd is also important when inferring Trump’s intent. He knows he’s not speaking to the Rotary Club here. Trump knows that his supporters routinely use the language of violence, insurrection, civil war, and “second amendment rights.” All outward signs would indicate this was a crowd stoked for violence – all they needed was their leader to give them a little nudge.

How exactly did Trump expect the protestors to “stop the steal” and prevent Congress from certifying Biden as the winner, if not by storming the Capitol to shut it down? Is it plausible that he believed the unruly mob before him was going to seek to “Save America” by peacefully linking arms outside the Capitol and singing Kum-ba-yah?

I think given Trump’s history and the overall context of the speech, the evidence of his intent is strong. But what really seals it for me is what he did once the riots started.

Trump’s Actions During the Riot

Although Trump promised the crowd he would be there with them as they marched to the Capitol, in fact he retreated to the White House to watch the developments on TV. There were reports from sources inside the White House that he expressed delight and excitement as he watched the riot unfold. He also was reportedly calling lawmakers, while the riot was going on, still trying to persuade them to delay the certification process or overturn the election.

There are also published reports that when the Mayor of D.C. called for reinforcements from the national guard, Trump resisted. (Because D.C. is not a state, the local national guard is controlled by the U.S. Department of Defense – so ultimately by Trump.) Vice president Pence was reportedly the one who finally ordered the D.C. national guard to respond, after a significant delay.

Finally, after allowing the riot to proceed for more than two hours and only after president-elect Biden had already called for the violence to cease, Trump released a tepid video statement to his supporters. He repeated the false claims that the election had been stolen. He told the rioters that he understood their pain. Remarkably, he said “we love you, you’re very special,” before saying it was time to go home.  Shortly thereafter he Tweeted:

These are the things and events that happen when a sacred landslide election victory is so unceremoniously & viciously stripped away from great patriots who have been badly & unfairly treated for so long. Go home with love & in peace. Remember this day forever!

These events are compelling evidence of Trump’s true intent. If he did not intend for the rioters to storm the Capitol, you would expect him to react with shock and horror and immediately try to stop it. Instead he watched excitedly on TV, delayed sending help, and continued working to try to stop Congress from acting while Congress itself was under attack. He praised his followers, told them he loved them, called them great patriots, and told them to be proud. Those are not the words of a man disappointed by what happened. That crowd did exactly what Trump wanted them to do.

I’m not suggesting that overcoming a First Amendment defense would be a slam-dunk. It’s possible to argue that he is just a terrible person who enjoyed the riot once it began but never really intended for it to happen. The First Amendment claim would clearly be the key legal issue to be resolved in any prosecution. But if I’m the prosecutor with this evidence, I like my case.

The Benefits of a Grand Jury Investigation

Launching a grand jury investigation is not the same as determining that criminal charges are appropriate. But a federal grand jury investigation would allow prosecutors to subpoena all relevant documents including emails, phone records, text messaging records, social media posts, and the like, to fully piece together all the events leading up to and during the riot. The grand jury could compel witnesses to testify under oath, such as witnesses to the president’s conduct and statements in the Oval Office while the riot was unfolding.

Such an investigation could uncover information that makes the evidence of Trump’s intent and role in the riot much clearer. We don’t know what is contained in the text messages or emails leading up to the riot, or what conversations witnesses could testify about. The grand jury could probe all of these details to see whether charges are appropriate. 

Any investigation also needs to explore the potential liability of others around president Trump, including others who spoke at his rally, as potential co-conspirators. The president’s prime enabler, Rudy Giuliani, who called for “trial by combat” after working for weeks to overturn the election, is certainly a potential target.

A conspiracy investigation should not be limited to events on the day of the riot. It would also make sense to explore other instances of misconduct, such as Trump’s recent call to Georgia election officials asking them to “find” the  votes they would need to overturn Biden’s victory in that state. As I wrote here, due to the heightened “willfulness” standard of intent for election offenses, prosecuting that call as a stand-alone election crime would be an uphill battle. But it would make sense to investigate that incident, and others, as potentially part of a conspiracy involving a pattern of overt acts seeking to overturn the lawful election results, culminating on January 6. 

There is a great deal about what happened on January 6 that we still need to learn, but it’s clear there is at least potential criminal conduct by Trump and others. Shortly after January 20, president Biden’s Department of Justice should convene a grand jury to investigate. We can’t say for certain at this point that criminal charges would be appropriate. But we can say for certain that a grand jury investigation is called for.

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Supreme Court Poised to Limit Computer Fraud Statute

Suppose your employer prohibits using the company computer system for personal purposes. You’re aware of the policy but you’re also a little behind on your Christmas shopping, so while logged in at work you spend some time on Amazon buying gifts. If your boss found out you might expect to be reprimanded, maybe even fired. You probably wouldn’t think you were potentially subject to federal prosecution. But under a legal theory advanced by the government before the U.S. Supreme Court last week in Van Buren v. United States, your holiday shopping could indeed be a crime. Fortunately, the Court seems poised to reject the government’s approach.

computer hacker

The Computer Fraud and Abuse Act

The criminal law in question is called the Computer Fraud and Abuse Act, or CFAA, 18 U.S.C. §1030.  The CFAA is the primary federal statute used to prosecute computer-related crime. It’s a complicated statute with a number of different sections. But in general, the CFAA prohibits breaking into a computer to harm that computer or steal information, commonly known as hacking. It prohibits sending malicious code or viruses that damage a computer or that allow the sender to obtain information without authorization — including “phishing” schemes. The CFAA also prohibits trafficking in computer passwords and extortion by threats to harm a computer or the information it contains.

A high-profile recent case involving the CFAA was the July, 2018 indictment brought by special counsel Robert Mueller of twelve Russian intelligence officers for computer hacking related to the 2016 presidential election. The indictment charges that the Russian agents hacked into computers and email accounts used by scores of individuals and organizations associated with the Hillary Clinton campaign and other Democratic organizations. The lead charge in that indictment: conspiracy to violate various provisions of the CFAA.

Van Buren v. United States

The Van Buren case argued before the Court last week involves a particular subsection of the CFAA, 18 U.S.C. §1030(a)(2)(C). Under that subsection, a person commits a crime whenever he “accesses a computer without authorization or exceeds authorized access, and thereby obtains information” from that computer. The term “exceeds authorized access” is further defined to mean, “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter.” §1030(e)(6). The issue in Van Buren is the proper interpretation of the term, “exceeds authorized access.”

The defendant, Nathan Van Buren, was a police officer in Cumming, Georgia.  As part of an FBI sting, he ended up accepting several thousand dollars from Andrew Albo, an informant cooperating with the FBI. In exchange, Van Buren agreed to search a police database for a vehicle license plate number Albo gave him. (Albo told Van Buren the car belonged to a woman he had met at a strip club and he wanted to be sure she was not an undercover police officer.) Van Buren performed the search for Albo in the Georgia Crime Information Center database. He had been trained on the use of that database and knew he was allowed to use it only for legitimate law enforcement purpose.

Van Buren was convicted for violating section 1030(a)(2). There was no question he was authorized to access the police database. But the government argued Van Buren had exceeded his authorized access, and thereby obtained the license plate information, by performing the search for an improper purpose – namely, in exchange for a bribe. 

Image of US Supreme Court, which decided the Bob McDonnell case
United States Supreme Court

Van Buren’s Position

In their briefs to the Court, Van Buren and those amici who support him argued that Section 1030 is, at heart, a computer hacking statute. It is primarily aimed at conduct that is the electronic equivalent of breaking and entering. According to Van Buren, the prohibition against exceeding authorized access therefore criminalizes obtaining information only when a person has no right at all to access that information. An example would be a Pentagon employee who is authorized to use the Department of Defense computer system for limited purposes related to her job, but then uses a stolen password to gain access to a different part of that system she is not authorized to view.

Van Buren unquestionably had the right to enter the database and access license plate data. In this instance he did so for an improper reason: because he had been bribed. That might subject him to job discipline or some other legal sanction, but it does not, Van Buren argued, violate the CFAA.  “Exceeding authorized  access” does not apply to obtaining otherwise accessible information for an improper reason. It applies, he argued, only when the defendant had no right to access the information under any circumstances.

Van Buren cited a number of examples of the potential consequences of the government’s position. Suppose workplace policy prohibits an employee from using the company’s computer system for social media, but she uses that system to log onto Facebook. Or an employee has a work-provided Zoom account that is to be used only for business but uses it for a group family chat on the weekend. Or someone uses a dating website but, in violation of the site’s terms of services, lies in his profile about how tall he is or about his age and then obtains information about potential partners.

 In each of these examples, the person has the right to access the information that was obtained, but did it in ways or for reasons that were not authorized. That is Van Buren’s situation as well. If the government is correct, he argued, then all of the people in those examples are criminals: they exceeded their authorized access by violating workplace policies or website terms of service.

Computer law expert Professor Orin Kerr, who filed an amicus brief, agreed with Van Buren and framed it this way: the CFAA prohibits someone circumventing technological barriers, such as a password requirement, to obtain information the person is not otherwise authorized to obtain. It does not apply to someone who merely ignores verbal or written barriers, such as instructions from an employer or requirements in a website’s terms of service. Here Van Buren violated police department policy, but he did not breach any technological barriers to obtain the information. Accordingly, the CFAA should not apply.

US Dept of Justice
U.S. Department of Justice

The Government’s  Response

The government responded that Van Buren’s argument ignores the plain text of the statute, and that the text is enough to decide this case. The statute prohibits exceeding authorized access and thereby obtaining information “that the accesser is not entitled so to obtain.” The key, the government argued, is the word  “so.” If Van Buren is right, that “so” is unnecessary. Congress would have just written “that the accesser is not entitled to obtain,” and Van Buren would be in the clear. But the word “so” in the phrase “so to obtain” means that the manner or circumstances of obtaining the information matters: “so” means that the defendant was not entitled to obtain the information under the circumstances in which he did, even if he could have properly obtained it under other circumstances. The statute therefore governs insiders who have some limited authority to access the relevant computer information but exceed those limits.

As for Van Buren’s hypotheticals about everyday computer users suddenly becoming criminals, the government argued those concerns are wildly exaggerated. Such cases are not being prosecuted, and Van Buren has not identified any such cases in the past that led to a sustained conviction. Potential cases involving people using Facebook at work are just a fantasy. They would never be brought in the real world.

The government also suggested that the hypothetical cases posed by Van Buren might not violate the statute because of other statutory terms. For example, the government argued that the term “authorization” means a user has been granted specific, affirmative, individualized permission to use the system. It might not apply to websites such as Facebook that simply take all comers who are willing to open an account.

The  Oral Argument – Reviewing the Parade of Horribles

During the oral arguments on November 30, several of the Justices appeared skeptical of the government’s arguments and concerned about the potential breadth of the statute.

The Court spent a good deal of time discussing Van Buren’s “parade of horribles,” the hypotheticals about all those who might be ensnared by the government’s interpretation. Justice Thomas wondered whether the parade was real, asking whether there were any real-world examples of the types of cases Van Buren was warning against. Jeffrey Fisher, counsel for Van Buren, admitted there were no recent examples. But he pointed out that the Court has repeatedly held it can’t approve a sweeping interpretation of a criminal statute based on the government’s promise that it will enforce it benevolently.

Chief Justice Roberts and others raised the idea of a different parade of horribles: bad actors who could NOT be prosecuted if Van Buren’s interpretation is adopted.  What about a bank employee, for example, who has legitimate access to computer files containing customer social security numbers but then accesses those files to steal the numbers and sell them? Fisher responded that other criminal laws would cover most such misconduct. Justices Gorsuch and Sotomayor appeared to agree that, given the number of federal and state criminal laws available, any such misconduct not covered by the CFAA could likely still be prosecuted.

Justice Sotomayor and others pressed the Assistant Solicitor General Eric Feigin on his suggestion that other terms, such as the definition of “authorization,” could control the sweep of the CFAA. She said the government was relying on narrower definitions that did not appear in the statute itself. Fisher also had noted in his briefs that there was no precedent for those narrower interpretations and that the government was merely raising them as hypotheticals, not committing to follow them.

Justice Kagan pressed both attorneys on the role of the word “so.”  She noted it requires an antecedent and asked each side what they thought “so” referred back to. Fisher replied that “so to obtain” merely refers to using a computer to obtain the information. That means it would not be a defense for an employee who hacked into a portion of the office computer to argue that he could have gotten the same information by some other means anyway. Even if that were true, he was not entitled “so” to obtain it – in other words, by hacking the computer.

Feigin argued that “so” referred back to the circumstances under which the defendant was obtaining the information. Van Buren was not authorized “so to obtain” the license information because the way he obtained it violated the workplace restrictions covering his use of the database.

Justice  Neil Gorsuch
Justice Neil Gorsuch

A Pattern of Government Overreach

I think the Court is likely to rule in Van Buren’s favor and reject the government’s sweeping interpretation of the CFAA. The battles over the significance of the word “so” are fascinating (at least to legal nerds), but in the end I don’t think they yield a clear winner. In light of that, the Court is likely to adopt the reading that avoids vastly increasing the scope of federal criminal law.

During his questioning of Feigin, Justice Gorsuch raised what I think is a key point. He noted there has been a string of cases in recent years where prosecutors have sought to expand the scope of federal criminal law in pretty sweeping ways. In each case, the Court has rejected the government’s position. I wrote about that trend in this post: White Collar Crime, Prosecutorial Discretion, and the Supreme Court. It stems both from the Court’s approach to federal criminal law in general and from a characteristic of white collar statutes like the CFAA in particular.

In general, the Court is reluctant to read federal criminal laws expansively, at least absent a clear sign of Congressional intent. In McNally v. United States in 1987, where the Court first rejected the theory of honest services fraud, part of its rationale was a concern that the government’s interpretation would dramatically increase the scope of federal criminal law. Just last year in Kelly v. United States, the Court reaffirmed that  principle when it unanimously rejected the government’s attempt to use federal fraud statutes to prosecute the defendants in the Bridgegate scandal. The Court noted that the defendants’ behavior was deplorable, but that not every instance of political misconduct amounts to a federal fraud.

White collar statutes in particular often raise concerns about their potential scope. They are written broadly to avoid loopholes that may be exploited by clever criminals. They deal not with clear crimes like assault or robbery but with fuzzier concepts such as fraud and corruption whose parameters are less well-defined. As a result, they often sweep within their terms conduct that most would agree does not merit  a federal prosecution.

For example, if I call in sick and lie to my employer so I can go to the ball game, that fits all the legal requirements for federal wire fraud. Fortunately, we don’t see cases of such truant employees clogging the federal courts. That’s because of prosecutorial discretion: prosecutors exercising good judgment about which cases are actually worth bringing and which should not be pursued even if they technically violate the statute.

But that discretion must be exercised wisely. In cases raising concerns about the scope of federal criminal statutes, the government’s response often has been, essentially: “Trust us. You should interpret the statute broadly, to allow us flexibility to pursue the appropriate cases. We’d never bring the trivial or outrageous cases that the defendant is claiming would result.”

That’s also what the government is saying in Van Buren: trust us, we’d never prosecute the employee who does holiday shopping at work. But in recent years the Court has been increasingly unwilling to take the government at its word. Instead, it has narrowed the statutes in question to limit prosecutors’ discretion.

Consider, for example, the Court’s 2016 decision in McDonnell v. United States, the corruption prosecution of the former governor of Virginia. McDonnell and his allies presented their own parade of horribles to the Court. They argued that if the government’s sweeping interpretation of “official act” in bribery law were adopted, federal officials would be at the mercy of prosecutors who might charge bribery based on politicians engaging in routine political courtesies. Part of the government’s response was, essentially, “we won’t bring those kinds of cases and never have.” That wasn’t enough for the Court: it unanimously rejected the government’s argument, threw out McDonnell’s conviction, and drastically narrowed the scope of bribery law.

To explain this Supreme Court trend, at least in part, the Justice Department need only look in the mirror. These are often self-inflicted wounds. The “trust us” argument becomes harder when the case that lands before the Court seems to involve a poor exercise of prosecutorial discretion.  This was true, for example, Yates v. United States, where prosecutors used an obstruction of justice statute with a twenty-year penalty to prosecute a captain who threw undersized fish overboard to avoid a civil fine. Or Bond v. United States, where a woman put Drano on the doorknob and mailbox of her romantic rival, causing a minor skin irritation, and was charged with a chemical weapons offense carrying up to life in prison.

When such cases make it to the Supreme Court, it becomes harder for the government to argue the Court should entrust prosecutors with criminal statutes that sweep as broadly as possible. That’s what led Justice Gorsuch to remark during the Van Buren argument that the Solicitor General’s office should not act as a mere “rubber stamp” when questionable cases stretching the boundaries of federal criminal law are brought by U.S. Attorneys.   

In this case Van Buren’s conduct does seem worthy of prosecution. But it also seems clear there were other ways  to punish him, either with other federal statutes (he was also charged with honest services fraud, but that charge may face a McDonnell issue) or with a Georgia state prosecution for bribery or other crimes. There is no need for the Court to stretch the boundaries of the CFAA based a concern that there is otherwise no way to punish someone like Van Buren.

In Van Buren’s case, the Court is likely to continue the trend identified by Justice Gorsuch. It will likely reject an expansive interpretation of the CFAA that turns almost all ordinary Americans into potential criminals. In this case, that’s the right result.

You may now return to your Amazon shopping.

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