While watching the events of January 6, 2021, in Washington D.C., I, like many other Americans, felt a wide range of emotions. First shock and disbelief that our Capitol was under siege by its own citizens. Second, confusion as I realized that this was not a protest for better wages, equal rights, or climate change but a protest over the outcome of an election that occurred two months ago. Finally, the criminal lawyer in me couldn’t help but analyze the legal consequences that each one of these rioters would potentially be facing if arrested.
If such an act had occurred in Illinois, these individuals would be facing Felony charges of Criminal Damage to Government Supported Property, Mob Action, and potentially Felony Murder. However, the venue is Washington D.C., and the proper jurisdiction is federal court. Under federal law, Seditious Conspiracy, criminal damage to property, and trespass to federal lands would be the potential charges these rioters and protestors could face. Seditious Conspiracy occurs when two or more people agree to use force to prevent, hinder, or delay the execution of any law of the United States or use force to seize, take, or possess any property of the United States contrary to the authority of law. 18 U.S. Code 2384.
I would like to give my fellow citizens the benefit of the doubt and believe that this was a protest that spontaneously turned violent; however, as a former prosecutor of 10 years, you must put faith, morals, and politics aside and focus only on the applicable law and the evidence presented. The evidence is that January 6, 2021 has long been set as the day that Congress would meet and certify the electoral votes. Yet ardent supporters of Donald Trump long touted that Trump would be declared the winner that day. That seemed unlikely given that all the votes had already been counted, certified, and challenged to no avail in courts at the state and federal level. Nevertheless, Vice-President Mike Pence still had to issue a statement indicating he had no authority to overturn any electoral votes. At the “Save America March” prior to the assault on the Capitol, Trump and assorted speakers said we will go down to the Capitol and let our voices be heard. And they urged the crowd to show a sign of strength.
There is no escaping that the March/Rally provided the spark for a proverbial powder keg in an attempt to prevent Congress from certifying the election. Language was used encouraging protestors to fight, show strength, and engage in combat (Rudy Giuliani). This was not a protest. It was a deliberate attempt to thwart Congress from carrying out its duties and a direct violation of federal law. Joe Biden was going to be certified as President of the United States on January 6, 2021. Yet, this mob was going to stop that from happening.
At this point, I do not have the benefit of reviewing investigative reports or physical evidence collected. I would hope such an investigation is underway; regardless, there is compelling evidence in the public record alone that these rioters committed Seditious Conspiracy urged along by the presidency. These rioters must face consequences for their actions, as should anyone who engages in arson, property damage, or commits violence against other people. Our country is great because of our innovation, our ideas, and our government. The peaceful transfer of power is essential to the survival of our republic. These rioters tried to prevent the peaceful transfer of power and provided an example of what not to do.
In November of 2016, my home county of Montgomery had an election for State’s Attorney. It was highly contested, and the incumbent Democrat won by 133 votes in a race where over 13,000 people voted. In July of 2017, the incumbent Democrat State’s Attorney was promoted to Judge, and I, a fellow Democrat, was appointed to finish out the term. The Montgomery County board at the time was dominated by Republicans with a 16-5 majority. Nevertheless, they did the honorable thing, the right thing, and the legal thing and confirmed my appointment. Because that is what the law says. There was no rioting in the streets, no objections, and no protests. In fact, I was approved by a unanimous vote.
In 2020, I was defeated for re-election as Montgomery County State’s Attorney. I did not demand a recount, I did not encourage violence against local election officials, and I did not scream and cry fraud. I conceded immediately on social media the night of the election. I thanked my supporters and the county and moved on because that’s what patriots do, that’s what Americans do, and that is what honorable people do. Our laws and republic are bigger than one man or candidate.
I urge all citizens to carefully consider what flag you choose to fly in front of your home.
Bryant Hitchings earned his B.A. in Legal Studies at UIS and his J.D. from Western Michigan Cooley Law School.