Constitutional expert wonders if there can be insurrection without anyone 'insurrecting'

New Jersey National Guard soldiers and airmen arrive near the Capitol to set up security positions in Washington, D.C., Jan. 12, 2021. (U.S. Air National Guard photo by Master Sgt. Matt Hecht)

Constitutional expert Jonathan Turley says there’s going to have to be a key question resolved as the court cases progress against those arrested for breaking into the U.S. Capitol, or just being there, during what ended up being a riot on Jan. 6.

“The question is whether you can have an insurrection without anyone actually insurrecting,” he wrote in a new column. “That Zen-like question may find its way into the hearings of some pending cases.”

His comments came after FBI sources explained they’d found no grand scheme by Trump supporters to attack the Capitol that day. President Trump had had a rally earlier in the day and urged his supporters to protest “peacefully” at the Capitol when Congress was to formally adopted Joe Biden as the presidential election winner.

A handful of people broke doors and windows to enter the Capitol and some Joe Biden supporters who weren’t even in the building, but were in other nearby locations in Washington, claimed they feared for their lives.

Several people did die, mostly from natural causes. One Trump supporter was shot and killed by a policy officer. One officer died of natural cases the next day and several more committed suicide in the following months.

But WND reported several law-enforcement officials have told Reuters the FBI has found scant evidence of an organized plot.

The FBI believes at this point in its investigation the violence was not centrally coordinated by far-right groups or Trump supporters, the sources told Reuters.

The sources have been either directly involved in or briefed regularly on the investigations, Reuters said.

Turley, in his column, pointed out Democrats and other leftists have made that claim – that the event was an actual “insurrection,” for months now.

“When protests by Black Lives Matter and other groups turned violent last summer, the media was expressly told not to refer to ‘rioters’ but rather ‘protesters.’ Riots causing massive property damage were described by CNN as ‘fiery but mostly peaceful protests,'” he wrote.

“Conversely, the Jan. 6 attack on the Capitol could not be just a riot, let alone a ‘fiery’ protest, but only an ‘insurrection.’ Many in the media continue to awkwardly refer to ‘the insurrectionists’ rather than the rioters. National Public Radio even ran a running account of the ‘Capitol Insurrection.’ The term was further driven home by House Democrats by impeaching President Trump for ‘incitement to insurrection’ despite undermining any chance for an actual conviction,” he said.

“Members of Congress like Eric Swalwell (D-Calif.) are still in federal court claiming a conspiracy of ‘armed and organized insurrectionists.'”

He said such a characterization serves a variety of political and personal interests, but, “Despite the adoption of the term by many in the media, there has been a growing disconnect with the actual cases in court.”

He cited the Reuters disclosure that there was “scant evidence” of any “organized” plot that day.

“In other words, they found a protest that became a runaway riot as insufficient security preparations quickly collapsed. While there clearly were those set upon trashing the Capitol, most people were shown milling about in the halls; many took selfies and actively described the scene on social media,” Turley said.

Hundreds have been arrested, but only a handful face conspiracy counts. And no one has yet been charged with insurrection, leaving prosecutors “a couple insurrectionists short of an insurrection,” he said.

Most of the cases are trespassing, and similar.

“Yet, the characterization of the ‘insurrection’ has continued as a virtual article of faith for those reporting on or writing about Jan. 6. Moreover, the treatment of many has remained severe, if not draconian by design. Justice official Michael Sherwin proudly declared in a television interview that ‘our office wanted to ensure that there was shock and awe … it worked because we saw through media posts that people were afraid to come back to D.C. because they’re, like, ‘If we go there, we’re gonna get charged.’ … We wanted to take out those individuals that essentially were thumbing their noses at the public for what they did,'” Turley wrote.

He said those who broke doors and windows should be punished.

“Yet, there remains a striking contrast in how other riots are characterized or prosecuted. Most of those arrested for violent protests after the death of George Floyd saw their charges dropped by state prosecutors. For months, rioters sought to burn federal buildings or occupy state capitals and, in some cases, seized police stations, sections of cities, even occupied a city hall. They were not declared insurrectionists; they were rioters before being set free after brief arrests,” he said. “Many of us remain disgusted and angered by the Jan. 6 riot — but it was a riot. It also was a desecration. These people deserve to be punished, particularly those who went with an intent to try to enter the Congress. The question is whether you can have an insurrection without anyone actually insurrecting.”

Turley is the Shapiro Professor of Public Interest Law at George Washington University.

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