For years, I have maintained that January 6th was a disgraceful riot but not an insurrection.
That issue came to a head with the litigation over disqualifying former president Donald Trump and similar calls to block dozens of Republican incumbents from ballots.
Now, the protest that became a riot has been elevated from an insurrection to a terrorist attack.
Rep. Alexandria Ocasio-Cortez (D-NY) and other democrats are using the description despite no one being charged with insurrection or terrorism.
On Sunday, Ocasio-Cortez declared to CNN host Jake Tapper that “We’re talking about an individual who ordered essentially a terrorist attack on the Capital of the United States in order to retain power.”
In fairness to Ocasio-Cortez, she is not alone in such characterizations.
For example, many of us were surprised when FBI Director Christopher Wray condemned the January riot at the U.S. Capitol as “domestic terrorism.” From a strictly legal basis, it was wildly inaccurate, in my view.
Liberal publications like Politico have railed against the Justice Department for not charging terrorism. That has been supported by some law professors.
Those charged for their role in the attack that day are largely facing trespass and other less serious charges — rather than insurrection or sedition. While the FBI launched a massive national investigation, it did not find evidence of an insurrection. While a few were charged with seditious conspiracy, no one was charged with insurrection. Trump has never been charged with either incitement or insurrection.
The media has fueled these claims. One year after the riot, CBS News mostly downplayed and ignored the result of its own poll showing that 76 percent viewed it for what it was, as a “protest gone too far.”
They argue that this riot could simply be treated as “calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” However, so could other protests that result in property damage and criminal acts. We have seen other legislative proceedings shutdown by protesters with members removed from the floor. The question is where to draw the line to avoid the arbitrary classification of some protests as terrorism and others as unlawful access or trespass.
Nancy Pelosi called protesters at her home Russian plants. Politicians called a protest on the Tennessee House floor “an insurrection.” Such rhetoric excess easily inflames the public, but it creates lasting erroneous views of the law. That in turn can pose a real threat to free speech as the line between demonstrations and terrorism are blurred.
Ocasio-Cortez’s view of what constitutes the crime of terrorism is dubious for many, particularly after she declared that racketeering is not a crime.
However, there is pressure to ramp up rhetoric as we approach the 2024 elections.
To start to call opponents or critics terrorists has long been a problem on both ends of the political spectrum.
