Below is my column in The Hill on the recent reports confirming that the FBI has not been able to establish a planned insurrection on January 6th despite the overwhelming references in the media. The vast majority of charges concern trespass or unlawful parading. The absence of a major insurrection or sedition prosecution is conspicuous but has done little to temper the characterization of the riot in media accounts or political statements.
Here is the column:
It may be true, as Confucius said, that “the beginning of wisdom is to call things by their proper name,” but it can also be the end of politics. For politicians, labeling controversies is often more important than addressing them. Even well-defined terms used in legislation must change to fit political needs, like “infrastructure.” When its real meaning stood in the way of real money, Sen. Kirsten Gillibrand (D-NY) simply tweeted: “Paid leave is infrastructure. Child care is infrastructure. Caregiving is infrastructure.” Done.
The same is true with labeling political violence. When protests by Black Lives Matter and other groups turned violent last summer, the media was expressly told not to refer to “rioters” but rather “protesters.” Riots causing massive property damage were described by CNN as “fiery but mostly peaceful protests.”
Conversely, the Jan. 6 attack on the Capitol could not be just a riot, let alone a “fiery” protest, but only an “insurrection.” Many in the media continue to awkwardly refer to “the insurrectionists” rather than the rioters. National Public Radio even ran a running account of the “Capitol Insurrection.” The term was further driven home by House Democrats by impeaching President Trump for “incitement to insurrection” despite undermining any chance for an actual conviction. Members of Congress like Eric Swalwell (D-Calif.) are still in federal court claiming a conspiracy of “armed and organized insurrectionists.”
The characterization of the attack as an insurrection served a myriad of political and personal purposes. First, it painted anyone associated with challenging the 2020 election results as supporting sedition and the country’s overthrow. Second, if this was a protest allowed to turn into an uncontrolled riot, there would be more questions about the failure to properly protect the Capitol.
It is easier to excuse a response to an insurrection than a violent protest. That point was expressly made by former U.S. Capitol Police Chief Steven Sund who insisted “this was not a demonstration. This was not a failure to plan for a demonstration. This was a planned, coordinated attack on the United States Capitol.”
Despite the adoption of the term by many in the media, there has been a growing disconnect with the actual cases in court. Indeed, a new report from Reuters disclosed that the FBI has struggled to support the account of a coordinated “insurrection” on Jan. 6. Reuters’ FBI sources said that, despite months of intense investigation, they could find “scant evidence” of any “organized plot” and instead found that virtually all of the cases are “one-offs.” One agent explained: ”Ninety to 95 percent of these are one-off cases. Then you have 5 percent, maybe, of these militia groups that were more closely organized. But there was no grand scheme with Roger Stone and Alex Jones and all of these people to storm the Capitol and take hostages.”
In other words, they found a protest that became a runaway riot as insufficient security preparations quickly collapsed. While there clearly were those set upon trashing the Capitol, most people were shown milling about in the halls; many took selfies and actively described the scene on social media.
More than 570 people have been arrested, but only 40 face conspiracy charges. Those charges are often based on prior discussions about trying to enter Congress or bringing material to use in the riot; some clearly came prepared for rioting with ropes, chemical irritants and other materials. Those cases, however, are a small group among the hundreds charged and an even smaller percentage among the tens of thousands of protesters on that day. They remain a couple insurrectionists short of an insurrection.
After five months of dragnet arrests nationwide, a few reporters noted that no one was actually charged with insurrection or sedition. The vast majority of people face charges like simple trespass. For example, the latest guilty plea is from San Francisco real estate broker Jennifer Leigh Ryan, who posted an account on social media of how “We’re gonna go down and storm the capitol.” She pleaded guilty this week to “parading, demonstrating, or picketing in a Capitol building” and faces a maximum sentence of six months in prison and a fine of $5,000.
Yet, the characterization of the “insurrection” has continued as a virtual article of faith for those reporting on or writing about Jan. 6. Moreover, the treatment of many has remained severe, if not draconian by design. Justice official Michael Sherwin proudly declared in a television interview that “our office wanted to ensure that there was shock and awe … it worked because we saw through media posts that people were afraid to come back to D.C. because they’re, like, ‘If we go there, we’re gonna get charged.’ … We wanted to take out those individuals that essentially were thumbing their noses at the public for what they did.”
That “shock and awe” included holding people without bail and imposing “restrictive housing” for no obvious reason. That includes some of the most notable figures from that day, like Jacob Chansley (aka Jake Angeli), better known as “Chewbacca Man” or the “QAnon Shaman” for the distinctive horned headdress he wore during the riot. Angeli, 33, is not accused of attacking anyone while parading around the Senate floor in his bear skin. He always insisted he was not trying to overthrow the nation with his decorative outfit and spear-topped flagpole. While the government did not find a basis for an insurrection or sedition charge, it did learn that he has an array of mental illnesses including transient schizophrenia, bipolar disorder, depression and anxiety. Yet, he has been held since the riot and is charged with six crimes, including violent entry, trespass and parading, that collectively could yield up to 28 years in prison.
There is a fair distinction between those who tried to stop the certification of a presidential election and those who burn police stations or businesses during protests. While the majority of people who went to the Capitol were protesters and did not engage in the riot, there were some who sought to physically disrupt or prevent the certification, including the use of violent entry into the Capitol. Yet, there remains a striking contrast in how other riots are characterized or prosecuted. Most of those arrested for violent protests after the death of George Floyd saw their charges dropped by state prosecutors. For months, rioters sought to burn federal buildings or occupy state capitals and, in some cases, seized police stations, sections of cities, even occupied a city hall. They were not declared insurrectionists; they were rioters before being set free after brief arrests.
Many of us remain disgusted and angered by the Jan. 6 riot — but it was a riot. It also was a desecration. These people deserve to be punished, particularly those who went with an intent to try to enter the Congress. The question is whether you can have an insurrection without anyone actually insurrecting. That Zen-like question may find its way into the hearings of some pending cases.
Calling these people “rioters” does not minimize what they did, or undermine the legitimacy of their punishment. However, there is wisdom and even the chance for resolution when we “call things by their proper name.”
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.