The Justice Department’s new focus in the Jan. 6 investigation on the “Stop the Steal” rally will present prosecutors with new legal challenges.
Nearly all of the defendants who have been charged in connection to the Capitol riot so far entered the building or otherwise participated in the mayhem that day.
Targeting those who organized the preceding rally would shift prosecutors’ scrutiny to figures who had little or no direct involvement with the violence that was carried out at the Capitol but may nonetheless have been working to prevent Congress from certifying President Biden’s election win.
The expanded investigation will likely force prosecutors to distinguish conduct protected under the First Amendment from criminal efforts to prevent Congress from carrying out its certification of Biden’s win.
Late last month, the Washington Post and New York Times reported that the Justice Department had expanded the scope of its investigation to include those who had organized the rally that came just hours before the Capitol was overrun.
The shift would mark an escalation in the probe, which has produced nearly 800 criminal prosecutions thus far.
Ankush Khardori, a former federal prosecutor, sees the move as a sign that the investigation is moving up the chain as part of a “bottom-up” approach that the department appears to be applying to its scrutiny of the Jan. 6, 2021, Capitol riot.
“They’ve done quite an efficient job moving hundreds of cases through, involving just people present that day, and are now working their way to a qualitatively different level of culpability, which would be potentially people who were not present, but participated in the funding and planning” of the rally, Khardori said.
The new focus will expand the range of figures receiving Justice Department scrutiny and removes a degree of separation between federal prosecutors and former President Trump, who spoke at the Stop the Steal rally, and his close allies.
It also presents prosecutors with new legal and political obstacles.
Finding the line between criminal conduct and constitutionally protected political activity is much trickier than bringing charges against demonstrators who attacked police officers or vandalized the Capitol, says Christopher Macchiaroli, a former prosecutor with the U.S. attorney’s office in D.C.
“On Jan. 6, you have actions that were clearly crimes,” Macchiaroli said. “Assaulting officers, threatening people, stealing property, destroying property — those are crimes, no matter if it’s political or not political.”
He added that the challenge for investigators will be determining whether those involved in the rally were urging Trump’s supporters to commit those crimes or simply “urging people to protest, and they take that message an extra step.”
“It is so closely tied with political statements and association and things of that nature, it’s very hard [for prosecutors] to take that First Amendment protected activity and turn it into criminal conduct.”
Daniel Richman, a law professor at Columbia University and former federal prosecutor, said the Justice Department will likely impose a higher threshold for bringing charges when it comes to rally organizers or those who spoke at the event.
“Speech itself is protected by the First Amendment only to the extent that it needs to pose a clear and present danger before it can be the basis for any government interference,” Richman said. “And when it comes to prosecutions, you want to go far beyond just the basic First Amendment doctrine and properly worry about the criminalization of even the most vicious political discourse.”
It’s unclear what aspects of the rally prosecutors will focus on or whether they actually intend on bringing charges against any of the organizers. According to The New York Times, grand jury subpoenas issued last month inquire about a broad range of topics, including “VIP attendees” — legislative and executive branch officials as well as alternate electors.
Last week, Ali Alexander, a Trump supporter who helped organize two Stop the Steal rallies in the weeks after the 2020 election as well as a Jan. 6 event that never took place, revealed that he had received a grand jury subpoena and agreed to cooperate with the investigation.
Alexander has previously claimed to have helped set the events of Jan. 6 in motion, but he has denied any wrongdoing and has since repudiated the rioters’ actions.
“I want to be clear now,” Alexander said in a statement last week. “I disavow and denounce anyone who in any way planned to occupy buildings or engage in violence on Jan. 6.”
The new focus in the investigation comes amid mounting political pressure from Democrats calling for the Justice Department to hold accountable Trump and others who had tried to undermine the 2020 election results and whipped his supporters into a frenzy on Jan. 6.
A federal judge last month issued a damning decision that found it “more likely than not” that Trump and some of his advisers committed serious federal crimes in their effort to prevent Biden from taking over the White House after the election. In his decision, U.S. District Judge David Carter concurred with allegations from the House select committee investigating Jan. 6 that the effort to derail Congress’s certification of the Electoral College vote amounted to at least two felonies.
The Justice Department has not charged anyone involved in Trump’s nonviolent efforts to derail the 2020 results from being carried out, which included trying to persuade then-Vice President Mike Pence to put a stop to Congress’s certification vote.
Khardori said that one of the biggest open questions about the Justice Department’s investigation is whether prosecutors will adopt Carter’s theory that even the nonviolent efforts to overturn the election were criminal, adding that the investigation into the rally may test how prosecutors assign culpability to high-level figures.
“It would be a very significant step in a new direction for the government to try to apply that theory to organizers,” he said.
Khardori added that the rally deserves intense law enforcement scrutiny regardless of whether the Justice Department pursues charges against any of its organizers.
“There are all these questions that deserve to be probed at that level,” he said. “Even if it doesn’t end up producing any significant criminal charges, it’s a good thing to do, and it’s overdue.”