Donald Trump can still be found criminally "culpable" for the Capitol riot, says lead prosecutor

The former top prosecutor in the insurrection probe says "maybe the President is culpable for those actions"

By Jon Skolnik

Staff Writer

Published March 22, 2021 11:43AM (EDT)

Donald Trump | Capitol Riot (Photo illustration by Salon/Getty Images)
Donald Trump | Capitol Riot (Photo illustration by Salon/Getty Images)

The former top prosecutor of the Capitol insurrection said that Trump might be responsible for the insurgency on Jan. 6, stressing that federal investigators are currently "looking at everything."

In a CBS interview on Sunday, Michael Sherwin, former interim U.S. Attorney for the District of Columbia said that it's undeniable that Trump "was the magnet that brought the people to D.C." 

"Now the question is, is he criminally culpable for everything that happened during the siege, during the breach? What I could tell you is this, based upon, again, what we see in the public record and what we see in public statements in court," he explained. "We have soccer moms from Ohio that were arrested saying, 'Well, I did this because my president said I had to take back our house.'"

"That moves the needle towards that direction. Maybe the President is culpable for those actions."

Asked whether there was a premeditated plan of breaching the Capitol, Sherwin said that he and his team were still investigating the extent to which the riot may have been pre-planned. Some rioters, Sherwin noted, have admitted to escalating the events on Jan. 6 beyond what they thought Trump had called for in his speech. 

Sherwin's interview comes as the prosecutor makes his departure from the Justice Department. Sherwin was originally asked to fill a vacancy leading the Washington U.S. attorney's office, where was unexpectedly called upon to spearhead a sweeping investigation into the Capitol insurrection. 

Sherwin noted in the interview that the most serious charge so far is obstruction. "That's a 20-year felony," he said. "They breached the Capitol with the intent, the goal to obstruct official proceedings, the counts, the Electoral College count.

While some defendants in the case have said the former president incited their violence on Capitol Hill, Trump has not been formally charged, nor has any other current public official. There is no indication that any probes have been opened into any public officials either.

Sherwin speculated that the future may hold sedition charges for many of the rioters.

"I personally believe the evidence is trending towards that, and probably meets those elements," he said. "I believe the facts do support those charges. And I think that, as we go forward, more facts will support that."

CNN reported that federal prosecutors have recommended sedition charges, but their recommendation is still under review. Some rioters also face conspiracy charges, which allege coordination and planning between participants of the unrest. Sherwin also said that his team might consider murder charges depending on the details surrounding the death of Brian Sicknick, a Capitol police officer who died after the riot potentially due to injuries sustained while defending the building. Investigators have speculated that Sicknick may have died as a result of bear spray. 

One difficulty in the investigation, Sherwin said, has been drawing the distinction between protestors and rioters. "We have to protect the First Amendment," he explained. "The great majority of the people there were protesters. When do you cross that line? You cross the line when you cross a police line aggressively. You throw something at a cop. You hit a cop. You go into a restricted area, knowing you're not supposed to be there. These are the plus factors that cross that line from a protester to a rioter."

Over 300 people have been arrested in connection to the Capitol insurrection on charges which include entering a restricted area, obstruction of Congress, and assaulting a police officer with a dangerous weapon. Earlier this month, a Trump appointee who worked as a U.S. Department of State aide was arrested for "physically and verbally [engaging] with the officers holding the line."

Trump has denied any responsibility for the events on Jan. 6.

By Jon Skolnik

Jon Skolnik is a staff writer at Salon. His work has appeared in Current Affairs, The Baffler, and The New York Daily News.

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Capitol Riot Donald Trump Jan. 6 Michael Sherwin Trump's Coup