Federal prosecutors are using a little-known federal terrorism statute to keep members of the Oath Keepers and Proud Boys locked up as they await trial on charges related to the Jan. 6 assault on the US Capitol.
Most recently, government lawyers have cited the statute in a court filing to prevent the release of Robert Gieswein, a Colorado man who marched with the Proud Boys on Jan. 6 while dressed in tactical gear and armed with a baseball bat and aerosol chemical spray can. Gieswein is accused of spraying a chemical agent at Capitol police officers and entering the Capitol through window breached by Proud Boy Dominic Pezzola, making him one of the first people to make it into the building. According to the government, Gieswein followed a group of rioters who chased Officer Eugene Goodman up the steps towards the Senate chamber, while it was still occupied, only to be redirected when Goodman retreated up a different stairwell leading away from the chamber. The government alleges that Gieswein went on to spray officers twice more — once inside the Capitol and again near the Capitol Visitor Center.
In a motion filed on June 15, the government declares that Gieswein "committed a federal crime of terrorism and two crimes of violence." As cited by the government, felony destruction of federal government property is considered a "federal crime of terrorism" under Title 18 USC Section 2332b(g)(5) when it is "calculated to influence or affect the conduct of government by intimidation or coercion."
"The grand jury found probable cause in count one of the indictment to believe that the defendant intended to obstruct an official proceeding by committing, among other things, acts of civil disorder and entering and remaining in the Capitol building on January 6," Assistant US Attorney Erik M. Kenerson wrote in the motion. "He entered through the very window whose destruction he is charged with aiding and abetting." (The government acknowledged in the filing that it has uncovered no evidence that Gieswein was affiliated with the Proud Boys prior to Jan. 6.)
By citing the federal terrorism statute, the government is establishing a presumption for detention, which requires the defendant to show the court why they should be released on bail before trial, rather than the other way around, said Walter Holton, a former federal prosecutor. While there is no law on the books making domestic terrorism a crime on its own, the element of terrorism can be used to enhance sentences once defendants are convicted.
"I think that's where the government is coming from," Holton told Raw Story. "It's putting the court on notice that if this person's convicted, the likelihood of them becoming a flight risk is increased because they're facing stiffer penalties."
Under the statute, conviction of a crime involving terrorism carries a term of a minimum of 10 years in prison, although some of the defendants face charges that carry sentences of up to 20 years.
The government has cited the federal terrorism statute in court filings against at least five members of the Oath Keepers and at least four Proud Boys members who are facing conspiracy charges in the assault on the Capitol. The Oath Keepers and the Proud Boys, along with six southern California men who organized under a Telegram chat called "California Patriots-DC Brigade," are the focal point of the government investigation into coordination and planning to obstruct the peaceful transfer of presidential power through the temporary occupation of the Capitol.
At least two federal judges have agreed with the government in describing the alleged offenses of some of the Capitol rioters as acts of terrorism.
In detention orders issued the same day using identical language against Joseph Biggs and Ethan Nordean, two national Proud Boys leaders who led the march to the Capitol on Jan. 6, Judge Timothy J. Kelly wrote on April 20 that "there is a rebuttable presumption that no condition or combination of conditions will reasonably assure the appearance of the defendant as required and the safety of the community." Kelly went on to say that Biggs and Nordean are each charged with "multiple felony offenses, including one Congress has characterized under these circumstances as a federal crime of terrorism, and another that exposes him to a 20-year sentence. In addition, the charges against him are by their very nature gravely serious."
Another federal judge has also used the term "terrorism," although more broadly to describe the overall assault on the Capitol, which involved hundreds of people, at a minimum.
"What occurred was — as alleged, is clearly terrorism," Magistrate Judge William Matthewman said during a June 2 detention hearing in southern Florida for Jason Dolan, one of 16 Oath Keepers charged with conspiracy. "It's clearly an unpatriotic attack on our country."
The judge later added: "Obviously, what happened on January 6th was just clearly a terroristic act based on the allegations in the indictment and just a horrendous attack on our country and our Constitution."
Despite characterizing the overall assault on the Capitol as "terrorism," Matthewman ultimately released Dolan to home detention with GPS monitoring.
Holton, who was appointed by President Clinton to serve as US attorney for the Middle District of North Carolina in the 1990s, said there's a simple reason why Congress has not voted to make domestic terrorism a crime in and of itself.
"Because it's white people," he said. "The same reason they can't pass an infrastructure bill. The Republican Party currently is not interested in criminalizing domestic terrorism. If you look at what happened on Jan. 6, that's the reason. It's their people; people who voted for Trump committed those acts."
More recently, the ACLU came out against the 2019 Confronting the threat of Domestic Terrorism Act, sponsored by Rep. Adam Schiff (D-Calif.), arguing: "People of color and other marginalized communities have long been targeted under domestic terrorism authorities for unfair and discriminatory surveillance, investigations and prosecutions. Law enforcement agencies' use of these authorities undermines and has violated equal protection, due process and First Amendment rights. Law enforcement agencies already have all the authorities they need to address white supremacist violence effectively. We therefore urge you instead to require agencies to provide meaningful public data on their use of resources and failure to prioritize white supremacist violence."
Holton said he supports making domestic terrorism a federal crime, while arguing that the definition on the books clearly delineates between violent conduct and peaceful exercise of First Amendment rights.
"If you engage in an act of violence or an effort to forcefully intimidate government officials for a purpose or a political agenda, that has nothing to do with the First Amendment," he said. "If you're attempting what happened — attempting to overthrow the government by force or stop a lawful government function by force, why would we not? If you're attempting to intimidate a race of people, the Ku Klux Klan is already labeled a domestic terrorism outfit."
The current terrorism enhancements could also conceivably apply to assaults against federal buildings in Portland, Ore. and other cities since last summer, Holton said, although he added that he isn't aware of any federal prosecutors having done so.
"If you are destroying a federal property to influence a political position, then, yes it could," he said.
Jason Blazakis, who served as counterterrorism finance and designations director at the State Department under President Obama, said in an email to Raw Story that he has seen the US government use the term "domestic terrorism" multiple times in press releases announcing prosecutions of individuals who were never subsequently charged with terrorism.
"This is problematic as it prejudices the case against the individuals," he said. "And it shows the level of creativity prosecutors and law enforcement have to go to try to keep these dangerous folks in check. And, it really highlights the need for a domestic terrorism statute."
Blazakis added that if the government is going to invoke the federal terrorism statute against Jan. 6 defendants, but not charge them for acts of terrorism, "that should be of concern to every American. Overreach and being too creative in developing cases (and motions for that matter) is a dangerous recipe."
Along with Biggs and Nordean, two other Proud Boys — Charles Donohoe and Dominic Pezzola — are also locked up as they await trial. Judge Kelly, who also described the alleged offenses of Biggs and Nordean as federal crimes of "terrorism," likewise ordered Pezzola to remain locked up, citing the federal terrorism statute. Pezzola is accused of using a stolen police riot shield to bust out a Capitol window, leading to the initial breach of the Capitol.
Donohoe, a North Carolina chapter president who has been described by a federal magistrate as a "trusted senior lieutenant" who was "responsible for the group's secure communications," is accused by the government of assisting Pezzola and reportedly bragged on Telegram about possessing the stolen riot shield. The government has argued that Donohoe, who has a hearing scheduled on Wednesday, should remain in detention, based in part on having "aided and abetted others… to forcibly enter the Capitol" resulting in damage in excess of $1,000, which the government defines as "destruction of property."
"When destruction of property is 'calculated to influence or affect the conduct of government by intimidation or coercion,' it also qualifies as a federal crime of terrorism," prosecutors wrote in a court filing last month.
John Daniel Hull IV, who represents Biggs, declined to comment for this story, while other attorneys representing Proud Boys and Oath Keepers defendants did not respond to emails.
Three members of the Oath Keepers are also currently locked up while awaiting trial.
Kelly Meggs, the Florida leader of the Oath Keepers, participated in a "stack" formation that snaked up the east steps of the Capitol as other rioters fired pepper spray at officers, beat them with shields and flagpoles, and yanked the doors open, according to a government filing. The government accuses Meggs and others in the "stack" of "aiding and abetting their attack, and then capitalizing on the breach moments later."
As with the Proud Boys, the government argued that "the offense was clearly calculated to 'influence or affect the conduct of government by intimidation or coercion' under Section 2332b(g)(5)(A)," successfully securing Meggs' pre-trial detention.
Judge Amit P. Mehta noted that during the detention hearing for Meggs' co-defendant, Kenneth Harrelson, the government submitted evidence that once Meggs made it into the Capitol, he and other Oath Keepers started walking toward the Senate chamber, where they were turned away by police. Then, they headed south toward the House chamber.
"He apparently was searching for at least one member of Congress in particular — House Speaker Nancy Pelosi," Mehta wrote. "In a communication sent on the evening of January 7, an unidentified third person said to defendant [that he] '[w]as hoping to see Nancy's head rolling down the front steps,' to which defendant answered: 'We looked forward her.' The word 'forward' is almost certainly a typo, and what defendant meant to convey is that he and others 'looked for' Speaker Pelosi. This evidence only confirms the court's original assessment of defendant's dangerousness, and that his release would endanger the community."
When FBI agents searched Harrelson's home in Titusville, Fla. following his March 10 arrest, they found a "go bag" with an AR-15-style rifle, a revolver, a semi-automatic handgun and a "burner" cell phone, according to a government filing. They also reportedly found a copy of Technological Slavery: The Collected Writing of Theodore J. Kaczynski, aka 'The Unabomber' and a survival guide on "eluding pursuers and evading capture."
"The conduct of defendant Harrelson and his co-conspirators — invading and temporarily taking over the national legislature while it was convening, pursuant to federal law, to formally count the ballots for the presidential election — was clearly 'calculated to influence or affect the conduct of government by intimidation or coercion," the government argued, concluding that "the definition of the federal crime of terrorism has been satisfied."
Assistant US Attorney Ahmed Muktadir Baset argued that Jessica Watkins, who breached the Capitol in full tactical gear while an unidentified person instructed her on Zello to "arrest this assembly… for acts of treason, election fraud," was a special case.
"She was somebody who recruited, trained, planned, and participated and organized a major part of this insurrection," Baset said during Watkins' Feb. 26 detention hearing. "And the reason is because it was calculated to influence or affect the conduct of government by intimidation, origin and force. And so, for those reasons, we do believe that what she was engaged in was a federal crime of terrorism under 2332a, as it's defined."