The insurrection and storming of the Capitol that occurred Wednesday, January 6th, was a stain on the nation and an attack on the core values of democracy. All should condemn it. It was not a peaceful protest. It was mob violence that led to the death of five people. It was domestic terrorism.
However, to the shock of many Americans, there is not a federal law that specifically outlaws domestic terrorism as a criminal offense. This has revived debate over whether there needs to be a law that specifically designates domestic terrorism as its own separate criminal offense.
Currently, there is no federal law or crime that directly addresses and outlaws “domestic terrorism.” Thus, domestic terrorism is not a chargeable criminal offense. Despite the fact that lawmakers, experts, and the media have identified the reprehensible events of January 6th as domestic terrorism, prosecutors cannot actually charge the rioters specifically with domestic terrorism.
What is Domestic Terrorism?
Section 802 of the USA PATRIOT Act, codified by 18 U.S.C. § 2331(5), defines domestic terrorism as committing:
an act dangerous to human life violative of the criminal laws of a state or the United States, if the act occurs primarily within the territorial jurisdiction of the United States, and appears to be intended to: (i) intimidate or coerce a civilian population; (ii) influence the policy of a government by intimidation or coercion; or (iii) to affect the conduct of a government by mass destruction, assassination or kidnapping.
This definition is both over-inclusive and under-inclusive. It is over-inclusive to where it would presumably even include some peaceful protests that could be seen as intimidating or even social media posts aimed at influencing government policy. This over-inclusivity creates a plethora of First Amendment concerns and challenges. This definition also includes under-inclusive language. The requirement that the act must be “dangerous to human life” excludes common forms of terrorism, such as cybercrimes, stealing public information, and forging government documents.
While the intent is always a major issue in criminal cases, the acts of the rioters at the Capitol certainly appear to meet this definition. Clearly, the intent on January 6th was to influence the verification of the electoral college results, which should meet subsection (ii)’s definition of “influence the policy of a government by intimidation or coercion.” For the majority of rioters present, their intentions were publicly known and broadcast on social media and even stated directly in interviews with media members both before and after.
While the U.S. Code provides a definition for domestic terrorism, that’s as far as it goes. However, this definition is not the only one. A definition relied upon by the FBI is found in Title 28 Section 0.85(l) of the Code of Federal Regulations, which defines domestic terrorism as “the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives.” But like the § 2331(5) definition, it does not create an actual domestic terrorism offense.
If Not Domestic Terrorism, Then What?
One is left wondering if the mob at the Capitol cannot be charged with domestic terrorism, then what can they be charged with? Well, the U.S. Attorney’s Office for the District of Columbia has charged a number of the rioters as they have been able to identify them.
The large majority of rioters are currently being charged with the following: 18 U.S.C. § 1752(a)(1) – (2), knowingly entering or remaining in any restricted building or grounds without lawful authority; 40 U.S.C. § 5104(e)(2)(A) and (G), violent entry and disorderly conduct on Capitol grounds; 18 U.S.C. § 641, theft of government property; 18 U.S.C. § 231(a)(3), interfering with law enforcement engaged in the lawful performance of their official duties incident to and during the commission of civil disorder; 26 U.S.C. 5861, unlawful possession of a destructive device; 18 U.S.C. § 875(c), knowingly and willfully transmitting threats in interstate commerce; assault on a federal law enforcement officer, and trespassing.
Some of the more recognizable rioters, such as Jacob Chansley, the man seen in media coverage who entered the Capitol building dressed in horns, a bearskin headdress, red, white, and blue face paint, have already been charged and taken into custody by the U.S. Attorney’s Office for the District of Columbia.
An interesting charging option being suggested by law professors and former federal prosecutors is Seditious Conspiracy, 18 U.S.C. § 2384. The elements of Seditious Conspiracy are: (1) a conspiracy, (2) to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof. Section 2384 was last successfully and notably utilized in the prosecution of Islamic militants connected to the 1993 bombing of the World Trade Center and other plans to bomb the United Nations, FBI, and the New Jersey and New York commuter tunnels.
Under former Attorney General William Barr, the Justice Department told prosecutors to consider levying § 2384 against those who caused violence at protests last summer over the killing of George Floyd by police. Sedition charges were ultimately never brought in those cases.
Michael Sherwin, the acting U.S. Attorney for D.C., stated that “all options are on the table” for charging members of the violent mob that stormed the U.S. Capitol — including sedition charges, stating “We’re not going to keep anything out of our arsenal for potential charges. We will bring the most maximum charges we can based upon the conduct.”
Calls for Domestic Terrorism Law Revived
Congressional leaders on both sides of the aisle did not hesitate to call the mob domestic terrorists from the Senate floor after they reclaimed the chamber and resumed ratification of the electoral votes. Soon to be President Joe Biden addressed the nation on January 6th, stating “Don’t dare call them protesters. They were a riotous mob. Insurrectionists. Domestic terrorists. It’s that basic. It’s that simple.”
President-Elect Biden has also promised to prioritize the adoption of “domestic terrorism” legislation. This idea to create new criminal laws in response to national displays of domestic terrorism is nothing new. President Bill Clinton signed the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) into law in the wake of the Oklahoma City bombing.
In August 2019 Congressman Adam Schiff introduced the Confronting the Threat of Domestic Terrorism Act that would make domestic terrorism a crime. In introducing the measure, Congressman Schiff explained that white supremacist terrorism should be treated the same as international terrorism so the public will take it as seriously. The Act has not made any progress since being introduced.
The George Washington University Program on Extremism recently published a study arguing that there is a major need “to enact a law specifically outlawing domestic terrorism” with “clear bounds to its application.”
New Domestic Terrorism Law May Not be the Answer
Not everyone agrees that there should be a law specifically criminalizing domestic terrorism. Opponents agree that what happened on January 6th was domestic terrorism; they just don’t believe more laws will create more justice. Attorneys with the Center for Constitutional Rights and the Creating Law Enforcement Accountability & Responsibility (CLEAR) project write in the Washington Post that “Doing so will only backfire: Expanding whom we call terrorists supposes that more law enforcement means more justice or fairness. That is ahistoric.”
Furthermore, opponents such as the ACLU National Security Project argue that in “using the ‘domestic terrorism’ label to promote more criminal statutes and police authorities, our country’s leaders are invoking systems that have been — and will continue to be — used to target and harm” minorities. Notably, a major concern here is that a new domestic terrorism statute will be used to aid authorities in targeting minority groups, such as Islamic religious groups and even Black Lives Matter and other activist groups that actively march and protest.
Additionally, others point out that federal law enforcement already has the tools necessary to investigate and prosecute white supremacist violence, and many acts that may qualify as domestic terrorism are still prosecutable under other federal statutes.
Lastly, the terrible acts of January 6th prove that domestic terrorists are not deterred by the rule of law and criminal statutes.
The peaceful transfer of power has been the hallmark of American democracy for over two-hundred years. The rioters that threatened that hallmark on January 6th failed. Congress and the Vice-President did what Americans do best, rallied against threats to democracy and freedom, and returned to the Capitol and calmly completed their constitutional duties to ensure a peaceful transfer of power.
This was a reminder that American democracy is fragile. It should not be taken for granted. Lawyers and law students have a special responsibility and duty to uphold the rule of law, to defend the core values of democracy, and to seek justice for all. Whether a targeted statute for “domestic terrorism” is the right idea or not, at the end of the day we must strive to ensure that the light of American democracy drowns out the darkness of domestic terrorism.
“Darkness cannot drive out darkness; only light can do that. Hate cannot drive out hate. Only love can do that. Hate multiplies hate, violence multiplies violence, and toughness multiplies toughness in a descending spiral of destruction” – Dr. Martin Luther King Jr.
 See, e.g., BJELOPERA, DOMESTIC TERRORISM: AN OVERVIEW, supra note 11 (asserting that many domestic terrorists do not intend to physically harm people but rather rely on alternative tactics such as theft, trespassing, destruction of property, and burdening U.S. courts with retaliatory legal filings); Ruiz-Grossman, Most of America’s Terrorists Are White, And Not Muslim, supra note 11; Miller, Patterns of Terrorism in the United States, 1970-2013, supra note 11 (asserting that businesses were the most common target between 1970 and 2013 and that the amount of property damage caused by non-lethal attacks totaled over $227 million, with each attack accounting for $45 to $50 million).
 U.S. v. Khan, 309 F.Supp.2d 789 (E.D.Va.2004).