Law Professors Examine Attack on Capitol

Three UC Davis law professors engaged in a public discussion Wednesday (Jan. 13) on “Insurrection and the Rule of Law,” exploring the potential legal, political and global repercussions of the Jan. 6 attack on the U.S. Capitol.

Afra Afsharipour, senior associate dean at the School of Law, moderated the panel that drew an online audience of more than 500 people.

Carlton F.W. Larson headshot

Supporters of President Donald Trump who stormed the Capitol could face “very serious charges of seditious conspiracy and conceivably even treason,” said Professor Carlton F.W. Larson, a constitutional law scholar and expert on the law of treason.

Seditious conspiracy is a federal crime defined as two or more people conspiring to “overthrow, put down or … destroy by force the government of the United States … or by force prevent, hinder or delay the execution of any law of the United States, or by force … seize, take or possess any property of the United States.”

“That does seem to be a pretty clear fit for what the insurrectionists did,” possessing the Capitol and seeking to prevent certification of the 2020 presidential election results, Larson said. Federal prosecutors already have said they are considering charging some rioters under the law.

“Treason” became a buzzword with the Trump presidency. But the insurrection marked the first time an action by Trump or his followers might meet the Constitution’s standard for treason as “levying war against the United States,” Larson said.

The Constitution’s framers are likely to have viewed the Capitol riot as treason. But subsequent case law “suggests you have to attempt to overthrow the entire government and not just suppress the execution of one particular law” to qualify, Larson said.

“My guess is a prosecutor would not bring a treason charge, because there are legal complications.”

Ashutosh Bhagwat headshot

The same day as the law school event, the U.S. House of Representatives impeached Trump for a second time, this time for “incitement of insurrection.” A Senate trial is likely to wait until after President-elect Joe Biden’s Jan. 20 inauguration. But among the “provisions that have been batted around,” including the 25th and 14th amendments, the impeachment process is the most practical political response to the insurrection, said Professor Ashutosh Bhagwat, a constitutional law scholar and First Amendment expert.

Vice President Mike Pence said this week he would not invoke the 25th, which would declare Trump unable to perform his duties. Pence said the president is not medically unfit.

Section 3 of the 14th Amendment, which “no one has thought about in 150 years,” Bhagwat said, could be dusted off. It prevents anyone who swore an oath to the Constitution from holding office after engaging in “insurrection or rebellion” against the United States. But Congress probably would need to pass a law to implement it, and in any event, it is unclear if Trump engaged in insurrection or rebellion.

“All of which is to say, there does not appear to be any viable way between now and a week from today to remove President Trump from office,” Bhagwat said, alluding to Jan. 20.

Karima Bennoune headshot

The insurrection also raised alarm and stoked rhetoric internationally, said Professor Karima Bennoune, an expert in international law and human rights law and the United Nations’ special rapporteur for cultural rights. Bennoune did not speak Wednesday in her U.N. capacity, but quoted U.N. officials who expressed sadness and shock regarding the insurrection.

Opponents of the United States also have weighed in, Bennoune said, with China’s state-owned Global Times newspaper claiming parallels between the Capitol insurrection and Hong Kong’s pro-democracy protests.

“This exemplifies the grim reality that in addition to the threats to democracy they pose here, these events will now be used by many repressive governments as a tool to undermine human rights and democratic claims elsewhere,” Bennoune said.

Widespread dissemination of racist imagery from the insurrection might foment already growing right-wing sentiment in other countries, Bennoune said.

“Extremism in the United States buoys extremism elsewhere.”

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