Unrest at the Capitol: Potential Violations of the Uniform Code of Military Justice

"After the unrest at the U.S. Capitol on January 6, 2021, sources reported that current and former military service members were among the participants in the unrest. These reports prompted several Members of Congress to ask the Department of Defense to investigate service members’ participation and take disciplinary action. The military is investigating whether any active-duty service members participated in the unrest, and the Joint Chiefs of Staff issued a memorandum condemning the “violent riot” and actions “that were inconsistent with the rule of law.”

This Legal Sidebar examines potential violations of the Uniform Code of Military Justice (UCMJ), codified in Title 10 of the U.S. Code, those service members may have committed. The Sidebar begins by discussing which current and former service members are subject to the UCMJ. It then examines offenses under the UCMJ that current or former service members may have committed on January 6, 2021, including potential sentences for each offense. It concludes with several considerations for Congress.

For information on federal criminal laws that may be relevant to the unrest at the Capitol, see CRS Legal Sidebar LSB10564, Federal Criminal Law: January 6, 2021, Unrest at the Capitol, by Michael A. Foster and Peter G. Berris. For general information on the military justice system and courts-martial, see CRS Report R46503, Military Courts-Martial Under the Military Justice Act of 2016, by Jennifer K. Elsea and Jonathan M. Gaffney..."
Capitol unrest 

Capitol Unrest, Legislative Response, and the Bill of Attainder Clause

"On January 6, 2021, a crowd gathered on the U.S. Capitol grounds, breached police barriers, entered and occupied portions of the Capitol building, and clashed with law enforcement. The incident resulted in at least five deaths, dozens of injuries, and damage to federal property. Members of Congress and the Vice President, who were counting electoral votes for the 2020 presidential election, were forced to evacuate in response to the unrest. Following the incident, some Members of Congress and other commentators have called for accountability for the individuals directly involved in the incident, as well as for others, potentially including elected officials, who may have incited or supported the unrest.

Many of those calls for accountability raise complex legal issues. As a recent CRS Legal Sidebar explains, the incident may implicate numerous provisions of existing criminal law. In addition, on January 13, 2021, the House of Representatives impeached President Donald Trump for incitement of insurrection based on the events of January 6. Lawmakers and commentators have also explored imposing liability under other legal authorities, including by passing new legislation or seeking to bar certain individuals from holding office under Section 3 of the Fourteenth Amendment.

This Legal Sidebar addresses one of the more novel issues that these proposals may raise. The Bill of Attainder Clause prohibits Congress from enacting legislation that inflicts punishment on an individual basis without a judicial trial. This Sidebar provides an overview of the Bill of Attainder Clause and presents certain related legal considerations for Congress as the legislature responds to the Capitol unrest..."
Capitol unrest 

Domestic Terrorism and the Attack on the U.S. Capitol

"On January 6, 2021, a large group of individuals breached the U.S. Capitol security while Congress was in session. Members were voting on whether or not to certify President-Elect Joe Biden’s election victory, and many participants in the attack allegedly intended to thwart this effort. According to media coverage, violent participants injured scores of District of Columbia Metropolitan Police and U.S. Capitol Police officers and killed one, while four civilians have died as well. In light of this incident and the violent threat to the operation of the U.S. Congress, policymakers may be interested in whether this incident may be treated as domestic terrorism and if the participants are domestic terrorists, among other issues. This Insight discusses whether or not participants and their actions may be categorized as domestic terrorists and domestic terrorism, respectively, and issues around designating domestic fringe groups, such as the Boogaloo Bois and Proud Boys who were allegedly involved in the attack, as terrorist organizations. It concludes with possible next steps for Congress.

Is this domestic terrorism?

The federal definition of domestic terrorism describes domestic terrorists as Americans who commit ideologically driven crimes in the United States but lack foreign direction or influence. The Federal Bureau of Investigation (FBI) generally relies on two sources to define domestic terrorism. First, the Code of Federal Regulations characterizes “terrorism” as including “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.” Second, 18 U.S.C. §2331(5) more narrowly defines “domestic terrorism.” This definition comes from Section 802 of the USA PATRIOT Act (P.L. 107-56). According to 18 U.S.C. §2331(5), domestic terrorism occurs primarily within U.S. territorial jurisdiction, and involves

(A) acts dangerous to human life that are a violation of the criminal laws of the United States or of any State; (B) appear to be intended—
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or Congressional Research Service https://crsreports.congress.gov IN11573 Congressional Research Service 2
(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping.."
Domestic Terrorism