Stanford Law’s Shirin Sinnar on the Attack on the U.S. Capitol and Ongoing Threats of Homegrown Terrorists and Hate Groups edited into a Q&A

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 homegrown terrorism.

Bankman: Today we’re going to talk about domestic threats to order. And I think maybe a place to start is what happened on January 6. I don’t know about you, but I was just glued to a screen watching the protesters break into the Capitol. I kept thinking, ‘Who are these people? And what can we do with a group like this in our midst?

Karlan: It’s something quite new in American history. The last time there was a real invasion of the Capitol was really during the war of 1812. And then in the early 1950s, there was an attack in the Capitol by a group of Puerto Rican nationalists. But other than that, the Capitol really has not been literally under siege. And certainly not in our lifetimes—the way it was this past week. Today we have with us one of our colleagues Shirin Sinnar, the John Wilson Faculty Scholar and a professor of law at the law school. And she has perhaps the most interesting combination of expertise for what we’re going to be talking about today, because she focuses both on national security-related issues, and on terrorism issues, and on civil liberties issues. And this lies at the intersection of a number of those areas of law.

Bankman: Shirin, can you help us understand who the protesters were,  particularly the violent protesters. Can you give us a profile of these people?.

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.

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.

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 leftwing threats.

Karlan: So, people from all over the country came. 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.

Karlan: One thing that you said earlier on, I wanted to come back to, because I think it’s really interesting, is, on the one hand, the online organizing is what enabled these groups to build their group and to encourage people to go to DC and the like. But then on the other hand, you were sort of suggesting that the online nature of what happened here makes it easier to figure out who did this. That is, 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.

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: I’ll just add that they’re not just federal charges here, but there are also a bunch of state law charges, obviously because there were all sorts of violations of the DC code. And then on top of the charges that could be brought against all of the people who entered the Capitol that, Shirin noted, there are potentially felony murder charges for the people who were involved in the beating of the officer who died. Because anybody who is engaged in a different felony at the time that they cause the death is guilty of felony murder.

Bankman: Can you elaborate on that? The basic notion, as I understand it is, if you’re engaged in a felony—say, a bank robbery—and someone dies, in many jurisdictions, under the doctrine of felony murder, you can be charged with the murder, even though you didn’t actually kill the person. It all depends on how the felony murder statutes work in that jurisdiction. Does D.C. have its own felony murder statute?

Karlan: It does have a felony murder doctrine, though we’d have not looked to see exactly what the contours of D.C.’s doctrine are. And then for the people who actually engaged in beating the officer, it’s not felony murder—it’s just plain murder. Because they engaged in a use of force that was foreseeably likely to cause death.

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? Shirin?

Sinnar: There are, as we’ve been discussing, numerous federal and state charges. And many of them are quite expansive in their form. So 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? And maybe that’s a question that we can get to. But 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.

Bankman: So, we’re talking about how broad these charges can be. We’ve talked a little bit about felony murder. And anyone engaged in a felony, if there is a death, could under some circumstances, be charged with felony murder. Conspiracy’s another very broad concept. And depending on how we define the activity, that could include everyone from people that didn’t march up to the Capitol building, to people who broke in the White House.

Sinnar: That’s right. 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: We were talking about criminal responsibility and what crimes the Capitol protesters and rioters might face, and whether it’s a good idea to increase criminal prosecutions, and increase the charges people are facing, What’s the alternative, Shirin? And if we don’t use criminal responsibility, what else can we do to show our outrage?

Sinnar: I wouldn’t actually frame the choice as an either/or. I think we can both use law enforcement means and prosecution of those who directly engaged in storming the capital, for example. But that doesn’t preclude other means of accountability, including the most important, which I think is political accountability measures directed at the president and those who enabled him in propagating the myth of widespread voter fraud. And those who, in other respects instigated violence.

So whether that’s impeachment, or whether it’s the decision of private companies to disassociate from the Trump organization, all of that is squarely aimed where it should be, which is the president and other political enablers of what happened.

Karlan: And is the idea behind that to punish the president? Or is it to deter future acts of incitement like this? Or somehow to change the political culture?

Sinnar: Well, it’s not just a retrospective punishment of the conduct that took place by the president, although I think that is important. But the fact is that Trump is not going away as a phenomenon and the many people who supported him are not either. And if we are concerned about, not just the risk of political violence, but the strength of our democracy in the years to come, there’s got to be a continued response to things like propagating false claims of fraud in order to support the attempt of the president to stay in office.

Karlan: And what about the members of Congress who also did that?

Sinnar: That’s a tricky question. And I don’t know what the right response is. There have been, of course, calls to expel members of Congress who voted against certification of the election results. I think certainly those like Senator Hawley and others who are at the forefront of propagating the false claims, the stigma that they deserve for their actions is as great as that of the president because they enabled claims that, on their own, would not have gotten nearly as far. I’m less sure about the particular mechanisms for dealing with them.

Bankman: You know, I want to pick up on the false claims point you just made, Shirin. I have almost some sympathy for the demonstrators—even those who crossed the line into illegal actions—who believed that the election was stolen. Someone’s stolen the election, maybe you ought to do something! As a defense matter though, those people I’m assuming are going to be kind of out of luck. That is, it’s not a defense to say, ‘I believed in my president,’ if you broke a window and went into the Capitol. And yet, morally, it’s hard not to feel some sympathy for people who really believe that.

Sinnar: Well, some may try to invoke some semblance of a public authority defense for their actions. I would not think that those would succeed. As much as the president instigated the violence, and here’s where it gets tricky because I certainly think that his words over a period of time did that, they might not find a particular statement where he said, you know, ‘Go and break down the doors of the Capitol.’ And so I don’t know that that defense as a criminal matter will succeed. But politically I think that’s part of why it’s so important to focus on those who propagated the disinformation—and not just on the large number of people who ended up buying into it.

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.

Karlan:  When you were talking about accountability, the question of how to hold people accountable in a world where large numbers of them simply don’t believe the same things. I mean, we live in a reality where a substantial part of the population believes the election was stolen, despite the fact that there’s actually no empirical evidence. And every time the president and his lawyers were given the opportunity to put proof into the record in a court of law, they backed off. How do you get accountability in a society that’s as riven as ours seems to be right now?

Sinnar: That, Pam, is the million dollar question. That’s exactly the challenge. Because some of the things that you might do that would further accountability, might be in some tension with convincing or ultimately leading people on one half of the political spectrum to accept the results.

So, for example, if your primary objective is to have the half of America that supported Trump and, you know, the majority within that group who still support the president, if you want them in some way to come around to an understanding and acceptance of the presidency, part of what that might take is for influential people on the right—besides the president—to speak to that. But that might be at odds with trying to hold that same group of people accountable for their conduct. So there’s a tension between that. I can’t say that I figured out the right balance.

Bankman: We’ve been speaking today with Shirin Sinnar about the right-wing terrorism in the country that manifested itself in the break-in of the Capitol. And one of the takeaways that I think some of us have from this, Shirin, is that we have a lot of criminal tools to deal with this, but they might be unsatisfying. Both because they’re not going to punish the higher ups in the right way, and because they can come back to haunt what a lot of us might think of as peaceful protests of marginalized groups in the future.

Karlan: Thank you so much, Shirin.