With No Pardon, Reps. Biggs And Gosar Face Legal Exposure For inciting Insurrection

In a CNN report on Donald Trump’s eleventh-hour pardons for his cronies and corrupt Republican politicians like former U.S. Rep. Rick Renzi of Arizona was this remarkable revelation:

So, too, was Trump warned that pardons for Republican lawmakers who had sought them for their role in the Capitol insurrection would anger the very Senate Republicans who will determine his fate in an upcoming impeachment trial.

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Several Republican lawmakers who are alleged to have been involved in the rally that preceded the deadly riot on the US Capitol have sought clemency from Trump before he leaves office, but after meeting with his legal advisers for several hours on Saturday, the President decided he would not grant them, according to two people familiar with his plans.

The fear of legal exposure is not limited to Republicans who promoted or spoke at the rally, including Reps. Andy Biggs, Mo Brooks and Paul Gosar. Those who participated, organized and fundraised for it are also concerned, sources told CNN, including his eldest son Donald Trump Jr. and his girlfriend Kimberly Guilfoyle, who both spoke at the rally.

Top figures associated with the groups that helped organize it — including Women for America First and Turning Point Action, the political action committee arm of Turning Point USA [an Arizona-based organization]- have also voiced private concern about legal repercussions, a person familiar tells CNN.

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As CNN has previously reported, one of the top organizers of the movement that aimed to overturn the election results claimed he worked closely with Republican congressmen. Ali Alexander, a leader of the “Stop the Steal” group, said in several livestream videos he planned the rally with Gosar of Arizona, Brooks of Alabama and Biggs of Arizona.

The Arizona Mirror follows up, Biggs and Gosar sought pardons for Capitol riot, but didn’t get them:

Arizona Republican Congressmen Andy Biggs and Paul Gosar have asked President Donald Trump to preemptively pardon them for their roles in the Jan. 6 insurrection at the U.S. Capitol, but the president has no plans to do so, CNN reported Tuesday.

Trump retains sweeping clemency and pardon powers until Joe Biden takes the oath of office at 10 a.m. Arizona time Wednesday, and CNN noted that the mercurial president could change his mind. However, facing an impeachment trial in the Senate and growing prospects that Republican senators — including longtime GOP leader Mitch McConnell — will vote to convict Trump for his role in encouraging the rioters, Trump has decided not to proactively pardon the congressmen.

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Ali Alexander, a conservative activist who helped organize the “Stop the Steal” protest on Jan. 6 claimed in several now-deleted videos in the days and weeks before the event that he, Biggs, Gosar and Alabama Congressman Brooks “schemed up” the plan to put “max pressure on Congress while they were voting” on whether to certify the results of the Electoral College. Trump and many of supporters hoped that Congress or Vice President Mike Pence could overturn the results during the certification vote.

POLITICO adds, Lawmakers who conspired with Capitol attackers in legal peril:

Lawmakers who interacted with the pro-Trump protesters who rioted at the Capitol last week could face criminal charges and will almost certainly come under close scrutiny in the burgeoning federal investigation into the assault, former prosecutors said.

“This is incredibly serious,” said Ron Machen, a former U.S. attorney for Washington, D.C. “Although you would need compelling evidence before charging a member of Congress with anything related to the breach of the Capitol that day, this has to be investigated.”

Unlike with the president, there’s no Justice Department policy shielding members of Congress from legal accountability while in office.

“I’d say those are potentially viable prosecutions,” added Peter Zeidenberg, another former federal prosecutor in Washington. “I’d say those guys should be worried.”

The role members of Congress may have played in facilitating the deadly attack drew intense attention this week after Democratic lawmakers alleged that some of their Republican colleagues facilitated tours of the Capitol on January 5 — one day before demonstrators engaged in the assault that terrorized lawmakers, ransacked congressional offices and left as many as five people dead.

Rep. Steve Cohen (D-Tenn.) claimed he saw newly elected QAnon cult member Rep. Lauren Boebert (R- CO) giving a “large” group a tour of the capitol the day before the riot. GOP Rep. Lauren Boebert gave Capitol tour to ‘large’ group before the riots, Democratic lawmaker says.

Rep. Mikie Sherrill (D-N.J.) sent a letter Wednesday formally asking the Capitol Police and congressional officials to investigate the tours, which she said were unusual. In a Facebook video, she said the visits amounted to “a reconnaissance of the next day.”

“The tours being conducted on Tuesday, January 5, were a noticeable and concerning departure from the procedures in place as of March 2020 that limited the number of visitors to the Capitol,” Sherrill and 33 colleagues wrote. “The visitors encountered by some of the Members of Congress on this letter appeared to be associated with the rally at the White House the following day.”

Sherrill suggested that access raised the possibility that the visitors were casing the building for the assault that unfolded the next day.

“Members of the group that attacked the Capitol seemed to have an unusually detailed knowledge of the layout of the Capitol Complex,” she wrote. “Given the events of January 6, the ties between these groups inside the Capitol Complex and the attacks on the Capitol need to be investigated.”

Justice Department officials have said they are looking for “all actors” who were involved in the Capitol riot. The FBI has also called on the public to turn over evidence on those who “instigated” violence.

Asked whether the probe includes potentially complicit lawmakers, a Justice Department spokesperson referred questions to the FBI, which did not respond to a request for comment.

The chief organizer of Stop the Steal, one of the groups behind the Jan. 6 protests that ended in a violent assault on the Capitol, has claimed to be working with several Republican members of the House to organize the event. But it remains to be seen whether any coordination ahead of last week’s rally extends to complicity in the storming of Congress.

Democrats have raised several potential means for punishing GOP lawmakers who may have been involved in either fomenting or directing the riot — from congressional investigation to criminal sanction.

“I hope we understand if there was an inside job — whether it was members or staff or anyone working at the Capitol who helped these attackers better navigate the Capitol — that is going to be investigated,” Rep. Eric Swalwell (D-Calif.) said Wednesday on MSNBC. Swalwell has also called out specific GOP lawmakers on Twitter, such as Rep. Lauren Boebert (R-Colo.), for seeming to disclose House Speaker Nancy Pelosi’s movements during the attack.

“To hell with the Ethics Committee, these people need to be charged criminally,” Rep. Sean Patrick Maloney (D-N.Y.) said on the same network.

The issue even arose during the historic impeachment debate on the House floor, where Rep. Cedric Richmond (D-La.) said some of his colleagues “may well be co-conspirators.”

Lawyers with experience prosecuting complex criminal cases said that anyone who helped the rioters survey the Capitol could face grave charges.

“It’s deadly serious,” said former federal prosecutor Harry Litman. “It’s kind of like giving troop movements to the enemy.”

Litman said he expects investigators to sweep through emails and text messages, looking for indications that anyone who works at the Capitol was coordinating with the plotters. Under criminal law principles, even those with minor roles could be held liable for the worst offenses of the rioters.

“Talking it through with them is really conspiracy territory, that means you’re potentially on the hook for everything that’s reasonably foreseeable and, knowing this cast of characters it seems to me that everything from trespassing to use of weapons to incendiary devices is reasonably foreseeable,” Litman said. “If the evidence proves it, they could be on the hook for everything up to seditious conspiracy.”

Machen said more evidence needs to be developed but there are hints of a possible case for aiding and abetting the rioters.

“If a member of Congress led the insurrectionists around the Capitol the day before the attack and there was compelling evidence of complicity in the breach, if congressional members were actively aiding and abetting people trying to storm the Capitol and disrupt the electoral certification, that’s really as close to being at the heart of a seditious conspiracy charge as you could hope to find,” the ex-U.S. attorney said.

Some lawyers have said that inflammatory speeches by President Donald Trump, Trump lawyer Rudy Giuliani and Rep. Mo Brooks (R-Ala.) to the crowd that joined in the riot a short time later may be protected by the First Amendment.

[B]ut ex-prosecutors say any criminal case against Trump or lawmakers would not be based solely on the speeches, but on other public and private communications — emails and texts exchanged with organizers and supporters in the days leading up to the rally and on the day of the shocking attack. Investigators will be looking for discussion of a physical assault on the Capitol building and for indications that individual members were specifically targeted.

Several experienced attorneys noted that any prosecution of political actors would be brought in Washington and that a local jury is unlikely to be sympathetic to claims that speakers were being colorful and not criminal.

“I would guess a jury would not find it very convincing. And these cases are going to be tried in D.C. and the jury isn’t going to buy this,” Zeidenberg said.

Investigations of Congress face special challenges. Lawmakers can try to use the Constitution’s speech or debate clause, which gives limited immunity to House members and senators, to prevent investigators from accessing their communications related to their official duties.

What a congressman said at a MAGA “Stop The Steal” rally is not a “communication related to their official duties” in Congress. Nor does the immunity apply to criminal conduct.

Zeidenberg said he’s confident those obstacles can be overcome. “There’s no speech or debate clause that covers text messages with constituents about breaking into the Capitol,” he said.

With the number of individuals facing charges now above 70 and still climbing, investigators also might not need to get communications from lawmakers or their offices in the first instance, but can get them from the email accounts and devices of suspected rioters.

“The first people to cooperate get the best treatment,” said Joyce Vance, a former U.S. attorney in Alabama. “Once they’ve identified people who went inside, they’re going to want to turn over what they have either because they have nothing to hide or because they want a deal, so it should not be very hard to get those communications.”

Some lawyers said the key question may not be whether a jury would convict, but whether Justice Department officials — including Biden’s Attorney General nominee Merrick Garland — decide the evidence of collaboration is strong enough to overcome concerns about intruding on the usual robust protections for free speech.

18 U.S. Code § 2383 is not limited to speech to establish legal culpability:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

Reps. Biggs and Gosar were involved in the planning of the rally that led to the insurrection at the Capitol. They certainly gave aid and comfort to the Trump mob. This may be enough to establish their legal culpability. That is why they were seeking a pardon from President Trump.