FA-Coup: Common questions about what happens after the coup

The January 6, 2021 coup has led to the largest federal investigation in history. As the nation’s eyes are turned towards the multi-faceted legal proceedings, there is a lot of mythology, ignorance, and curiosity around what happens next. This is an attempt to explain the process. As always, this is not legal advice.

For cases pertaining to the coup, see the detail page.

What happens next with the investigation?

The investigation will lead to a number of criminal charges. The justice system is complex, but there are only a few ways that an accused can be convicted or acquitted in a court of law.

First, in many cases, a criminal complaint will be issued. This can happen either after an arrest by a police officer on the scene, or after an investigation by a law enforcement officer. A criminal complaint is usually sworn by a law enforcement officer with the intent of either obtaining an arrest warrant, if the defendant is not in custody, or for charging a defendant who was arrested on probable cause.

After the complaint is filed and the defendant is arrested and arraigned, prosecutors will either drop the charges or proceed towards a grand jury indictment. Here, new evidence can lead to more significant charges or modifications of the complaint charges.

If a defendant elects to plead guilty, they can waive their right to an indictment and plead to a set of charges agreed on with the prosecutor, which may be different than the complaint charges.

If a true bill is signed by a grand jury, then the defendant is indicted and will proceed to a criminal trial. The defendant can still plead guilty at any point. Moreover, indictments can change based on new evidence, called a superseding indictment.

Finally, the complaint process is not strictly necessary. The ongoing investigation can result in charges being brought by direct indictment, where the prosecutor puts the evidence before the grand jury, and if indicted, a judge will sign a warrant for the defendant’s arrest. Grand juries can be open for 18 months or more, so it is likely to expect that charges can be brought for many years after the event.

Why are the charges so weak?

Many of the initial charges have been based on a Charging Complaint. This is a sworn statement by a law enforcement officer done to obtain an arrest warrant. These are not the final charges. As the investigation proceeds, investigators may find more evidence of other crimes being committed.

As the case proceeds, prosecutors will either move to indict or seek a plea deal. In either case, the evidence obtained during the investigation may lead to more significant charges, including serious felonies. The complaint charges are the bare minimum charges that an investigator has high confidence for a successful probable cause argument.

Moreover, complaints can be amended and more significant charges can result. In any case, don’t fret over what appear to be softball charges at first. It is entirely reasonable to expect that in many cases, the charge sheet will get upgraded based on the results of the ongoing investigation.

Why are so many people getting bail?

Because some of the charges are fairly weak misdemeanors, there is not a good argument for significant bail. It is necessary to remember that bail is not supposed to be a punishment, it is supposed to be a guarantee that the defendant will show up for court.

In many cases, the coup participants left Washington, D.C. and traveled back to their home states, where they were arrested. In these cases, the local magistrate judge may opt for home confinement or bail with location monitoring, among many other options. However, because the charges are being brought in the District Court of the District of Columbia, the presiding judge there can issue a stay of any release order. This has already happened in a few cases. This can happen because the DC courts will be more aware of impending indictments, sealed complaints/indictments, or other details.

In any case, when the DC court intervenes, the defendant may be extradited to DC wherein a bond hearing will then be held. So don’t assume any bail decisions are final.

Does President Trump’s Executive Order about statues and monuments have a backfire effect?

Not really. The President does not have the power to write laws and create crimes; we have a President, not a king. What the President’s Executive Order did was direct the Justice Department to apply certain standards when investigating possible violations of existing statutes outlawing damage to certain federal property. The President does not have the authority to dictate to prosecutors that these charges be pursued.

Moreover, the President does not have power to affect sentencing. Sentencing for federal offenses is based on a complex calculation that involves the facts of the case and the defendant’s criminal history. Some enhancements, such as being the leader of a group, will add “points” to a sentencing score. Other factors can decrease this score, such as the acceptance of responsibility.

Once factoring in this score and the criminal history, a crime will result in a specific range of potential incarceration. A judge has discretion to set the sentencing above or below this limit, based on the statutory maxima, but in the vast majority of cases stays within the guideline recommendations.

Will the President issue a blanket pardon?

It’s impossible to predict, but probably not. The President is under impeachment and such an act would not weigh favorably for him. Moreover, the President does not care much about his people. During his campaign he claimed he would pay legal defenses for people who assault protesters, but that did not appear to happen.

Moreover, the legality of a blanket pardon is questionable, and not all participants, nor the extent of their crimes, are currently known.