How Congress is addressing the Jan. 6 insurrection

Read the Full Transcript

• Hari Sreenivasan:

  Former President Donald Trump is facing his second impeachment trial and the charge this time is incitement of insurrection.

  For more on the ongoing investigation of the attack on the Capitol on January 6th and the former president's role that day and before, I spoke with New York University School of Law Professor and Co-Editor-in-Chief of Just Security, Ryan Goodman.

  Ryan, where are we at in terms of Congress trying to get a handle on what happened January 6th and also the climate that we seem to be in now post-January 6th?

• Ryan Goodman:

  So Congress is two tracks, it looks like.

  One track is the impeachment process and the trial that's going to take place in the Senate.

  And then the other track is a bunch of congressional investigations that will try to make all sorts of determinations, including the security breach and the intelligence failure that led up to the January 6th events.

• Hari Sreenivasan:

  Here we are with more and more evidence that there was coordination, that there was planning and then there was an attack. And yet the Capitol Police were completely caught flat footed.

• Ryan Goodman:

  It's an incredible failure in so many different levels. The FBI and DHS did not issue what would be a routine threat assessment. They produce those kinds of threat assessments for George Floyd, protests like Black Lives Matter protests.

  So it's really an incredible situation in which concerns about whether or not there were biases within the ways in which these agencies operated with respect to these particular types of groups or something more concerning with respect to political pressure that might have been placed on the agencies. But no doubt, there is very serious concerns about the preparation and then also how they actually handled the events on that particular day.

• Hari Sreenivasan:

  What about the recent warning by the Department of Homeland Security that we are to be vigilant throughout the country, not just in one specific location for more actions like this? I mean, that's pretty unusual.

• Ryan Goodman:

  It's very unusual. It should alert everybody that something very serious is afoot. The last time they issued a bulletin like this was about a year ago dealing with potential threats from Iran. And the time before that was about a year ago, dealing with potential threats from al-Qaida or ISIS.

  So the fact that they would at this time issue a national terrorism advisory alert across the country, that there is a concern that domestic extremists were still motivated by the same motivations that led them to the insurrection on January 6th are now a threat across the country is something very unusual, and it's certainly something that is a flashing light.

• Hari Sreenivasan:

  A lot of people say the phrase domestic terrorism, but is there something on the books, so to speak, where we can charge people in the United States with that?

• Ryan Goodman:

  One school of thought says there are plenty of resources currently available to charge these individuals and especially charges that include conspiracy that would apply to them in terms of when they're organizing as a group. Seditious conspiracy looks like it's on the horizon. The Department of Justice has suggested that those charges are likely coming in.

  Another school of thought is that there should be domestic legislation passed for, quote unquote, domestic terrorism. But civil libertarian groups are very concerned that that would have unintended consequences in the ways in which that would generate excessive authorities. Their answer to this is that there are ample authorities that we don't need to go down this path and we've avoided going down this path for those kinds of concerns in the past. And it looks like there are no shortages of domestic criminal law, authorities and other authorities for the FBI and the DHS to address the threat. They've been constrained, unfortunately, in the past few years with the Trump administration from being able to coordinate and really address the threat head on.

• Hari Sreenivasan:

  What should the threshold be on figuring out whether a member of Congress or whether a member of the administration or the president's lawyer took part in an act of sedition or conspiracy towards that?

• Ryan Goodman:

  If there was any aiding and abetting or planning with respect to these groups that then attacked the Capitol, that would potentially be aiding and abetting criminal liability, part of the seditious conspiracy. Certainly, there's also a question of incitement to insurrection, federal criminal law, incitement to riot under D.C. law.

  And the D.C. attorney general has stated, in fact, that he is looking at incitement to riot with respect to the president's speech on January 6th. This is not to say that it was all preplanned that these individuals would have foreseen a commission of violence or killing of a police officer and other people. But if they planned and intended for individuals to go into the Capitol to disrupt the business of Congress, those very words are the words of a federal criminal statute, which is the one that's probably been most widely applied to the individuals that is currently being charged for the events of January 6th.

• Hari Sreenivasan:

  All right. NYU School of Law Professor Ryan Goodman, also co-editor in chief of the Just Security blog. Thanks so much.

• Ryan Goodman:

  Thank you.