Category Archives: Special Online Issue: Capitol Insurrection 2021

Taking Congress and the Capitol Seriously as National Security Institutions

By Dakota S. Rudesill

Responsibility for the seditious violent attack on the United States Congress of Jan. 6, 2021, rests with serious afflictions within our civic culture, with a series of costly errors regarding the security of the Capitol, and with then-President Donald Trump’s mendacious inspiration, assembly, and direction of a massive, frenzied, armed mob to march on the Capitol.

Also operating here to leave the Congress insufficiently warned and the Capitol inadequately defended was a general, longstanding failure among many to regard the Congress and the Capitol as national security institutions of paramount importance. Although the crowd was large and violent, it is hard to imagine such a mob ever – or at least so quickly and extensively – penetrating security at other public sites well understood to be vital to the nation’s security, such as the White House or the Pentagon, and halting for hours their ability to execute their responsibilities under the Constitution.

Better protection would certainly flow from a proper appreciation of the nation’s legislature and the iconic temple of democracy in which it meets as central to the nation’s survival and very identity. Ultimately, better security must be balanced with the public access imperative in an open society, in a way that preserves both …

The January 6, 2021, Capitol Riots: Resisting Calls for More Terrorism Laws

By Sudha Setty

On January 6, 2021, a group overwhelmingly comprised of white supporters of President Trump engaged in extraordinary violence against people and property at the U.S. Capitol. In the weeks since those attacks, many terms have been deployed by politicians, the media, legal commentators, and legal academics to describe the events: riots, insurrection, sedition, coup, and terrorism, just to name a few.

Many have expressed hope of seeing the alleged perpetrators legally labeled as “terrorists.” Intuitively the label fits because they caused mass terror at the U.S. Capitol with the stated desire of disrupting democratic processes and effectuating government change, but for some the label rightly derives from schadenfreude for right-wing extremists who have long been perceived as being treated leniently by policy and law, and in political discourse …

Will Brandenburg Provide Protection for Donald Trump in the Second Impeachment Trial?

By John Cary Sims

Those preparing bar examination questions, and law school professors writing questions for their students in Constitutional Law or First Amendment Law, often create a fictional scene in which a speaker exhorts (or perhaps berates) a described group of listeners who are gathered in a certain place under stated circumstances.

While sometimes contrived, these scenarios are fun to write, and they have the additional potential merit of giving students the opportunity to apply the well-known, multi-part Brandenburg test in a fact-specific context that may ease the grader’s pain when confronting dozens of answers to the same question. Somewhat unexpectedly, the Members of the United States Senate have recently been given this question, which, most regrettably, is not at all hypothetical or fictional …

The Capitol Invasion and the Framing of Political Violence

By Shirin Sinnar

In the wake of the invasion of the Capitol on January 6, 2021, the media, political leaders, and scholars sought the right term to capture the violence that had occurred: was this a protest, a riot, an insurrection, a seditious conspiracy, an autogolpe (“self-coup”), or domestic terrorism?

Some of the debate over language stemmed from the challenge of conceptualizing a problem that seemed to have few domestic analogues in recent memory; it is not often that U.S. presidents instigate protestors to march on the Capitol to disrupt the certification of an election with false claims of election fraud and rhetoric licensing violence. Moral outrage also drove the search for the most stigmatic label imaginable for those who stormed the Capitol, as if the blunt force of an epithet could bludgeon them into submission …

Stepping Back from the Brink?

By Robert S. Taylor

The attack on the Capitol has revealed for the entire world to see that our democracy is fragile, and its survival is not ensured. Donald Trump is no longer President, but the poison he tirelessly pumped into the body politic is still coursing through our veins.

The violence on January 6 resulted in five deaths, but its threat to our country cannot be gauged by these numbers. With a little more coordination among the attackers, with less individual heroics by such Capitol Police as Officer Eugene Goodman, and with less good luck, members of the House and Senate, and even the Vice President, could have been “arrested” or killed, and the final step in the constitutional process for certification of the election of the president perverted …