Americans have been left stunned by the breach of security by rioters at the U.S. Capitol  on January 6—and concerned about ongoing threats from hate groups and the angry mob. In the Q&A that follows, edited from an episode of Stanford Legal on SiriusXM recorded on January 13, national security law expert Shirin Sinnar joins co-hosts Pam Karlan and Joe Bankman to discuss critical legal questions about hate groups and political violence.

Listen to the January 13 episode of Stanford Legal with Shirin Sinnar

Bankman: Shirin, can you help us understand who the protesters were, particularly the violent protesters.

Sinnar: We’re still trying to find out exactly who was involved. But we do know certain things. Those who invaded the Capitol seem to be a mix of Trump loyalists who were united under the ‘Stop the Steal!’ banner and mobilized by the false claims of voter fraud. But also members of far-right militant groups like the Proud Boys or the Oath Keepers that also mobilized to actually shut down the Capitol in advance of January 6. Media reports in the last few days have actually identified facially some of those who were present at the Capitol and in the vanguard of the invasion. And they’ve identified members of these groups, and in some cases, those who were there were actually members of law enforcement and military veterans. Including, of course, the woman who died at the Capitol. So it’s an explosive mix of people who are involved.

Bankman: Shirin, can you tell us a little bit about these groups? The Proud Boys and the Oath Keepers? Some of us might know the names, but we really don’t know much more than the names.

Sinnar: I’ll give you one example. So, the Oath Keepers is a group that formed about a decade or so ago. It’s actually led by a Yale Law School graduate. And the organization actively recruits law enforcement and military active duty, or veterans, to join its ranks. Apparently the group boasts as many as 20,000 or 25,000 members. And by some estimates, two-thirds of those members are actually people with law enforcement or military backgrounds. Their name comes from the idea that they are protecting their constitutional oath to defend the United States. But during the Trump administration, they shifted posture from being against the government to seeing Trump as their president, and seeing their role as to defend him from immigrants, fraudulent voters, and any other number of left wing threats.

Karlan: How were they induced to get there, to D.C.?

Sinnar: A lot of online organizing. And, again, some of it was organizing by groups like those that rallied under the ‘Stop the Steal!’ banner in the days after the election. There was also a lot of organizing by groups that have been established for some number of years, like Oath Keepers and Proud Boys.

During the Trump administration they have become more public and more mobilized. Certainly, while we’ve not seen these sorts of attacks on the Capitol in Washington DC in particular, the deeper mobilization of these groups is not a new phenomenon.

Karlan: And even though the group gathered and then, for the most part, dispersed from the Capitol after the Capitol was re-secured, we’re now finding out who was in there.

Sinnar: Some people who were going to the Capitol were quite explicit about their intentions. And that’s one of the things that so striking is that there weren’t necessarily a lot of efforts to be covert about the plans and the organizing. So now there are many people whose words on social media in the days before the event can place them at the Capitol and give some sense of what their intent was in going there.

Karlan: What was the role of the president in all of this?

Sinnar: The president, by his words, for some period of time, has been instigating that kind of activism on the right. We saw that in his words after Charlottesville, where he hesitated to condemn white supremacy. You know the famous comment about ‘There were bad people on both sides.’ We see it in his comments in the presidential debate when he told the Proud Boys to stand back and stand by. That kind of implicit, at the least, if not overt, support for right-wing organizing has been there for some time. And then the more recent comments by the president, including on the day of the incident.

Sinnar: Well, the president, by his words, for some period of time, has been instigating that kind of activism on the right. We saw that in his words after Charlottesville, where he hesitated to condemn white supremacy. You know, the famous comment about ‘There were bad people on both sides.’ We see it in his comments in the presidential debate when he told the Proud Boys to stand back and stand by. So that kind of implicit, at the least, if not overt, support for right-wing organizing has been there for some time. And then the more recent comments by the president, including on the day of the incident.

Bankman: Some in this group of lawbreakers took selfies of themselves and advertised their intentions, and then, in some cases, acknowledged publicly what they had done proudly. What’s the law enforcement immediate effort look like? What happens now to people who were there?

Sinnar: Well, there are any number of existing federal charges that can be applied. So whether it’s charges for trespassing federal grounds, or assaulting federal law enforcement officers, destroying property—there are numerous sections of the federal code that can be deployed against these people. And that seems to be the focus of the federal effort right now.

Then of course, there are the longer-term questions, and actually near-term ones because we’re hearing about threats to the inauguration, to state capitals and the like. There’s also an important need to identify and prevent some of the threats that we now see in the works.

Karlan: The question in some ways is, how broad do the forms of liability go? Not, is there anyone who can be charged? But how many people can be charged, and with what?

Sinnar: There are, as we’ve been discussing, numerous federal and state charges. And many of them are quite expansive in their form. Then there’s the prudential question of how broadly do you want to apply them? And that gets to some complicated questions. There’s no shortage of federal law that can be used. You can easily throw the books at people. You know, conspiracy charges and other charges like that, and really expand the number of people who can be considered liable for certain criminal conduct.

But the question is, how broadly do you want to sweep? I don’t think that the answer here is as broad as possible, or as severe a punishment as possible. Part of the reason for that is the charges that are available. The length of sentences are, in some cases, quite extraordinary. But also the labels that we use and the frameworks we support now can be deployed in the future against larger groups of people. And that’s something to be careful of. You know, there shouldn’t be an instinctive move to the highest sentence, or the most sweeping liability possible.

Conspiracy charges are broad. And on the one hand, that gives law enforcement the potential to go after people who were clearly involved in instigating acts of violence, planning acts of violence, and were not necessarily the ones who burst through the doors.

On the other hand, for that very reason, law enforcement and the public ought to be careful about how broadly they want these charges to be deployed, because they can reach lots of people and the sentences can be really significant. And I want to give you an example of one charge that’s been talked about a bit, which is a conspiracy charge—this seditious conspiracy charge—that I think is concerning.

So, some have suggested we should go beyond conventional law enforcement charges and deploy the more political charges. And there’s a seditious conspiracy statute that applies to two or more people agreeing to either overthrow the government, or interrupt or impede the execution of some federal law. And descriptively, certainly some of those who invaded the Capitol to stop the constitutional process of certification of electoral college votes may have been engaged in, or may fall within, the terms of that statute.

But once we begin to use sedition charges, and seditious conspiracy charges, we’ve got to think about the broader context of who historically and in the contemporary period, those charges are likely to affect most. So, for example, it was just four or five months ago that the Attorney General was calling on prosecutors all around the country to bring seditious conspiracy charges against police protesters. And many on the left said that that’s not appropriate. That even if some engaged in acts of violence against federal courthouses or the like, sedition has too long a history of being connected to dissent. We don’t want to loosely use it in these sorts of circumstances.

So, I do think it is more likely Black Lives Matter protesters or indigenous protesters who are disrupting oil pipelines and others on the left who are seen as challenging a racial or socioeconomic order who bear the greatest risk from the expansion of those sorts of freedoms [if prosecuted].

Karlan: So is it your view that there just shouldn’t be a sedition or a seditious conspiracy charge at all? Or is it that you don’t think that’s what happened here was sedition?

Sinnar: It’s not that the actions of some who invaded the Capitol don’t fit within the terms of the statute. My concern is that normalizing the use is likely to lead to greater use against people within marginalized communities, those on the left, compared to white supremacists. Just one other point about the idea that the government in recent decades has not used the charge—but it has. And one of the things I find notable about it is that the cases that have fallen apart or resulted in acquittals often involve white supremacists and militia members. The ones that ended up in conviction involve Puerto Rican nationalists, Muslims, and others. So we’ve got to look at that historical context in thinking about current use of the charge.

Bankman: The D.C. Attorney General has said he’s going to look for criminal responsibility. I think he named both the president and Rudy Giuliani as objects of investigation on whether they instigated the riot and the Capitol building break-in. What’s the law on that?

Sinnar: Well, the legal standard for incitement as a matter of criminal law is different than for impeachment—high crimes and misdemeanors does not require proof of a criminal violation. But the criminal law standard comes from a 1969 Supreme Court decision, Brandenburg, in which the Court set that standard high. It required, essentially, that to be culpable for incitement, you had to have both the intent to instigate imminent lawless action, and that your actions were likely to have that effect. And the standard is set high for good reason—to distinguish between an angry or provocative speech, and a speech that is extremely likely to produce violence.

The question then becomes, well, did the words of the president or his sons or Giuliani meet that standard? And although the standard is high, context also comes into play. So I don’t want to suggest a response to whether the line is met. But some of the facts that would be important, would be, for one, the context of the crowd itself. So you’ve got hundreds of people who are shouting ‘Fight for Trump! Fight for Trump!’ during the speeches. You certainly had violence by the Proud Boys and others in advance of that rally that the president and others spoke at. And how much did the president and others know about the plans to storm the Capitol? So when they made those remarks, inferring what their intent was you will take into account some of that surrounding context—including facts that we may not know completely at this point.

This show transmitted on SiriusXM on January 16 and will be posted on the Stanford Legal website on January 20.