Rep. Mikie Sherrill, D-N.J., is backing down from her claim that Republican colleagues escorted people through the Capitol the day before the Jan. 6 riot for “reconnaissance” but still insists it must be investigated.
Sherrill previously said in a video posted online: “I also intend to see that those members of Congress who abetted him — those members of Congress who had groups coming through the capitol that I saw on Jan. 5 for reconnaissance for the next day — those members of Congress who incited the violent crowd, those members of Congress that attempted to help our president undermine our democracy, I’m going see that they’re held accountable.”
At the time, she declined to indentify any Republican lawmakers or explain how they were conducting “reconnaissance.”
In an interview Friday with New York’s WCBS-TV, Sherrill backed away from the charge, saying “there’s is a possibility that they did not realize what some of these groups were doing, that they were groups of constituents — and they should not have brought them into the Capitol complex.”
She said that people in a “suspicious group” were wearing “MAGA hats and Trump things.”
She’s one of several Democrats who have claimed Republicans helped rioters by giving them tours.
“Many of the members had received a security brief on Jan. 3, the sergeant-at-arms reposted for the new Congress information that there were no tours allowed, even tours given by members. So they should not have been in there,” she said, Fox News reported.
But she still declined to be specific.
“I don’t want to specify who they were, since it is an ongoing investigation. I have spoken to people at the FBI about this, and they called to ask about this. I don’t really want to get into who it was at this time,” she said.
Meanwhile, House Speaker Nancy Pelosi said Friday that any Republican member could be charged criminally if they helped rioters.
“If, in fact, it is found that members of Congress were accomplices to this insurrection — if they aided and abetted the crime, there may have to be actions taken beyond the Congress in terms of prosecution for that,” she said at a news conference.
On Wednesday, Pelosi led House Democrats and 10 Republicans in voting to impeach President Trump for “incitement of insurrection” even though the mob had erupted at the Capitol before Trump was done with his speech.
George Washington University law professor Jonathan Turley, who testified in favor of Trump in the impeachment hearings one year ago, said the claims by Sherrill are “an unambiguous allegation of criminal conduct” leveled against members of Congress.
If her charges are true, he wrote on his website, the members “could be criminally charged and expelled from the House.”
However, he said, if her charges are rhetorical, or end up unsubstantiated, “she could (and should) face a resolution of censure.”
“Once she names a member, she could also be the subject of a defamation action. This was a statement made off of the floor and not protected under the Speech and Debate Clause,” Turley said.
“Censure or reprimand is not the only possible response if this allegation is found to be without basis,” he said.
Turley noted that the standard for defamation for public figures and officials in the United States is the product of the New York Times v. Sullivan case in which the Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press.
“The Court sought to create ‘breathing space’ for the media by articulating that standard that now applies to both public officials and public figures. In order to prevail, they must show actual knowledge or reckless disregard of the alleged falsity,” he explained.
The truth remains a defense, he pointed out.
In Gertz v. Robert Welch, Inc., Turley said, “the Supreme Court has held that public figure status applies when someone ‘thrust[s] himself into the vortex of [the] public issue [and] engage[s] the public’s attention in an attempt to influence its outcome.'”
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