No Jan. 6 Protesters Have Been Charged With Terrorism—Here's Why

The divisive debate over what the January 6 riot at the Capitol actually was has once again been inflamed amid the one-year anniversary.

On January 6 2021, a violent mob of Donald Trump supporters stormed the Capitol building in Washington D.C., with many attacking police officers on the way, in what prosecutors say was an attempt to stop the 2020 Election results being certified in favor of President Joe Biden.

One one side, ardent Trump supporters have continuously claimed that January 6 was merely a protest against a fraudulent election, while also downplaying the violence that occurred day.

Others, such as the House Select Committee investigating the insurrection, refer to January 6 as a "domestic terrorist attack on the Capitol" which was allegedly incited by Trump himself.

On the eve of the one-year anniversary, Texas Senator Ted Cruz was criticized by fellow right-wing figures and Trump supporters after he called January 6 a "violent terrorist attack" at a Senate Rules Committee.

One of those who appeared to scorn Cruz over the remarks was Jack Posobiec, the far-right figurehead who helped spread the QAnon-linked "Pizzagate" conspiracy theory.

"Must have missed all those Jan 6 protesters charged [with] terrorism," Posobiec tweeted on January 5.

While there are many who consider the Capitol attack an act of domestic terrorism, it is true that none of the 700-plus suspects who have so far been arrested in connection to January 6 are facing terrorism charges.

The simple fact is that even if there was enough evidence to accuse a Capitol riot suspect of terrorism, there is no legal definition for domestic terrorism in the U.S, meaning it is not a federal crime.

Therefore, far-right groups such as the Proud Boys, whose members are accused of taking part in the Capitol attack, or even the Ku Klux Klan, can not be formally listed as domestic terrorists in this country under current legislation.

Groups such as ISIS and Al-Qaeda are labeled terrorists because they are international organizations that threaten the security of the U.S.

People in the U.S. expressing far-right and white supremacists views can also be protected under the First Amendment, unlike those promoting international terrorist ideology.

The issues of trying to officially label those who took part in the Capitol attack as terrorists was highlighted in a report from the Congressional Research Service (CRS) just one week after the riot occurred.

"While the participants' actions on January 6 may be consistent with the definition of domestic terrorism, it is important to note that domestic terrorism is not a chargeable offense on its own," the report states.

"There is no federal criminal statute that establishes criminal penalties solely for 'domestic terrorism,' although it may be an element of other federal crimes or provide an enhanced sentence. In other words, an individual may commit criminal acts that are widely considered domestic terrorism and be prosecuted for the criminal acts themselves, but an individual cannot be charged with committing an act of domestic terrorism under current federal law."

One of the most prominent examples of a person committing acts of terrorism in the U.S without being charged with terrorism offenses is Timothy McVeigh, who killed 168 people after bombing a federal building in Oklahoma City in 1995.

While the Oklahoma Bombing is one of the deadliest act of domestic terrorism in U.S history, McVeigh was never charged with terrorist offenses.

He was convicted of conspiracy to use a weapon of mass destruction, use of a weapon of mass destruction, destruction with the use of explosives, and eight counts of first-degree murder for the deaths of law enforcement officers in 1997 and sentenced to death.

As noted by Politico, around 45 Capitol riot defendants are charged with a crime that warrants tougher sentencing as the act can amount to a terrorist or politically motivated act—destruction or "depredation" of federal property.

However, unlike the fatal and hugely destructive crimes committed by McVeigh, the charges in relation to January 6 mainly amount to smashing of Capitol windows, such as those aimed at leading Proud Boy members Dominic Pezzola and Ethan Nordean.

"There appears to be a good deal of distance between that allegation and a terrorism case," defense attorney Nick Smith wrote on behalf of Nordean.

jan 6 terrorism
Supporters of Donald Trump wear gas masks and military-style apparel as they walk around inside the Rotunda after breaching the US Capitol in Washington, D.C, January 6, 2021. SAUL LOEB/AFP/Getty Images