Last night, Fox News broke the story that the U.S. Capitol Police arrested a group of staffers with CBS’s “The Late Show With Stephen Colbert” and charged them with unlawful entry. The crew was reportedly shooting a skit dealing with Jan. 6th but ended up with the same charge that has been levied against the vast majority of those arrested after the riot. Fox is reporting that the crew was told to leave but regained entry through a staff member of Rep. Jake Auchincloss (D., Mass). They also interviewed House Intelligence Chair and Jan. 6th Committee member Adam Schiff (D., Cal.). The arrests could put Speaker Nancy Pelosi in an awkward position.
The police confirmed that a group of seven people were arrested. The group reportedly included Robert Smigel, 62, who is best known as Triumph the Insult Comic Dog and is a frequent guest on Colbert’s CBS show. Others listed are Jake Plunkett, Allison Martinez, Tyrone Dean, Stephen Romond, Nicoletta Green, Brendan Hurley, Josh Comers and David Feldman. Plunkett is a senior producer and director on the show.
The crew reportedly gained entry earlier to interview Schiff, Auchincloss, and Rep. Stephanie Murphy (D., Fla.). Later, the Capitol police found them in the halls and they were told that they had to leave. According to Fox, they later regained entry through an aide to Auchincloss, though it is not clear if the representative knew about it or if the aide was mistaken on their purposes. However, they were later spotted filming outside of the offices of Minority Leader Kevin McCarthy R-Calif. and Rep. Lauren Boebert, R-Colo.
As I noted when this story was breaking last night, unlawful entry was the most likely charge because it can apply to remaining in the Capitol even if you were initially granted access for a legitimate purpose. Under 18 U.S.C. 1752, anyone can be arrested who “knowingly enters or remains in any restricted building or grounds without lawful authority to do so.”
Since the crew was presumably not armed, the lesser potential penalty would apply of up to a year in jail. Jail time would seem highly unlikely though the Biden Administration has held those arrested for the Jan. 6th riot for long periods and sought maximum sentences. Again, the obvious difference in the underlying context justifies the release of the crew. However, since they were arrested in the evening, it would have been common to have been held over night. It is not clear if that was the case from the initial accounts.
This is obviously not a major breach of security and not the equivalent to the Jan. 6th riot which caused extensive damage and interrupted our constitutional process in the transition of power. However, it also highlights how the vast majority of those arrests were not charged with insurrection or even seditious conspiracy but the same charge of unlawful entry or trespass.
If the crew thought it better to ask forgiveness rather than permission in remaining, it was a uniquely poor decision given the security rules after Jan. 6th. This could put some of these members in an awkward position. It is difficult to downplay such security breaches after the January riot. Indeed, Speaker Pelosi has repeatedly attacked Republicans for not taking the new security precautions seriously and imposing hefty fines for failures to comply, including evading metal detectors. She has denounced Republicans for “refusing to adhere to basic precautions keeping members of our Congressional community, including the Capitol Police, safe.”
It may be hard to spin these arrests or seek the dropping of the charges in light of statements of the Speaker, though she was also accused of evading the new precautions.
Ironically, Auchincloss has spoken about how important Capitol security is and how Jan. 6th showed that “people get through you, they get behind you and then the whole line breaks.”
Here is the statement issued by the police:
“On June 16, 2022, at approximately 8:30 p.m., U.S. Capitol Police (USCP) received a call for a disturbance in the Longworth House Office Building. Responding officers observed seven individuals, unescorted and without Congressional ID, in a sixth-floor hallway. The building was closed to visitors, and these individuals were determined to be a part of a group that had been directed by the USCP to leave the building earlier in the day. They were charged with Unlawful Entry. This is an active criminal investigation, and may result in additional criminal charges after consultation with the U.S. Attorney.”
It is not clear what the additional charges might entail or whether there are others who might be charged.
Recently, Colbert joked how he was thrilled to be mentioned in the Jan. 6th hearings. Within 24 hours of the arrest of his crew, Colbert declared “come and get me” to the “neo numbnuts” charged in these cases. He said it was thrilling to “feel so seen” in such moments.