As federal prosecutors bring an array of criminal charges against dozens of people who carried out a gruesome attack on the nation’s capital last week, one question remains: Was it terrorism, insurrection, or a coup — and does it matter?
Lawmakers in both parties have emerged in the days since the attack to deem it “domestic terrorism,” including President-elect Joe Biden, who said the supporters of President Trump who overtook the U.S. Capitol were a “riotous mob, insurrectionists, domestic terrorists.” National security experts agree — the rioters achieved a smattering of all three.
Domestic terrorism is defined by the U.S. government as “acts dangerous to human life that are a violation of the criminal laws of the United States or of any state; appearing to be intended to intimidate or coerce a civilian population; influence the policy of government by intimidation or coercion; or affect the conduct of a government by mass destruction, assassination or kidnapping; and occurring within the United States,” according to the FBI’s and Department of Homeland Security’s joint definition.
Terrorism, or violent extremism, that is perpetrated within the U.S. is broken down into subcategories: racially motivated, anti-government, animal rights and environmental, abortion-related, and all other types, which last week’s incident falls under.
Domestic terrorism itself is not a charging statute, meaning that even if a rioter acted in a way that meets the terrorism definition, he or she cannot be charged in court with “domestic terrorism” but the actual crime. The Army secretary has announced the opening of 25 domestic terrorism cases as a result of the riots, which include charges for gun offenses and unlawful entry. When combined and with specific intent, they can create a domestic terrorism case.
Federal Law Enforcement Officers Association President Larry Cosme told the Washington Examiner that other charges could fit under all three categories, including interstate threats to House Speaker Nancy Pelosi, violent entry and disorderly conduct on Capitol grounds with the intent to impede government business or official functions, and possession of unregistered firearms or destructive devices. As the cases progress, the FLEOA wants to see other serious charges, specifically seditious conspiracy and insurrection, added to the list.
On “insurrection,” the same federal statutes state that any person who “incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
The top federal prosecutor for the U.S. attorney’s office for the District of Washington, D.C., Michael Sherwin, said it may take months to discover how the plans were concocted and organized but that the office has already seen “indications of affiliation and a command-and-control.”
A coup is action by someone who knowingly or willfully “advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State, Territory, District or Possession thereof,” according to the U.S. Code.
Fiona Hill, former deputy assistant to Trump, argued that although Trump did not invoke his presidential powers in a sudden motion, his goal was “to keep himself in power, and his actions were taken over a period of months and in slow motion.”
“Trump disguised what he was doing by operating in plain sight, talking openly about his intent,” wrote Hill, the former senior director of the National Security Council’s European and Russian Affairs. “He normalized his actions so people would accept them. I’ve been studying authoritarian regimes for three decades, and I know the signs of a coup when I see them. Technically, what Trump attempted is what’s known as a ‘self-coup.'”
City of University New York associate professor and senior staff attorney for the Creating Law Enforcement Accountability and Responsibility project Tarek Ismail said in a phone call that society’s obsession with classifying the attack would only have negative consequences.
“Using the right words doesn’t flip some magical switch that forces agencies to go after those plotting harm,” Ismail and co-author Diala Shamas wrote in an op-ed that he summarized. “‘Terrorism’ as a legal construct is inseparable from its discriminatory legacy. It has been mobilized to fuel racist policies against Muslims, black political organizing, and other marginalized groups for decades. It has no inherent fidelity to its dictionary definition — its fidelity is to the state’s power to suppress marginalized communities.”
