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Image: A view shows a road leading to the U.S. Capitol in Washington
The U.S. Capitol on Jan. 13, 2021.Brandon Bell / Reuters

Capitol Police examining whether lawmakers assisted rioters

With all the focus on Trump's possible criminal liability for the riot, it's worth noting he may not be the only politician with something to worry about.


As things stand, no members of Congress stand accused of aiding the insurrectionist mob that launched a deadly attack on the U.S. Capitol last week. But the possibility that lawmakers cooperated in some capacity with rioters has rattled many on Capitol Hill.

House Speaker Nancy Pelosi (R-Calif.) told reporters today, "If, in fact, it is found that members of Congress were accomplices to this insurrection -- if they aided and abetted the crime -- there may have to be actions taken beyond the Congress in terms of prosecutions."

It's against this backdrop that the New York Times reported this afternoon:

The Capitol Police said Friday that it had opened an investigation into whether members of Congress inappropriately gave visitors access to the Capitol ahead of the storming of the building last week, after several lawmakers raised concerns that their own colleagues might have allowed members of a pro-Trump mob inside in the days leading up to the assault.

As has become obvious in recent years, it is Justice Department policy not to indict a sitting president during his or her time in office. But as we've seen in many corruption cases against members of Congress, no such protection exists for federal lawmakers during their time on Capitol Hill.

With this in mind, Politico spoke to former prosecutors who agreed that lawmakers who interacted with pro-Trump rioters "could face criminal charges and will almost certainly come under close scrutiny in the burgeoning federal investigation into the assault."

The article quoted Peter Zeidenberg, another former federal prosecutor in D.C., adding, "I'd say those are potentially viable prosecutions. I'd say those guys should be worried."

At issue are claims, from Rep. Mikie Sherrill (D-N.J.) and others, that some Republicans effectively offered "reconnaissance" tours to Capitol attackers ahead of last week's deadly riot. This week, 34 House Democrats formally requested that the Capitol Police, among others, examine the alleged tours.

Today, a spokesperson for the Capitol Police said the office is examining the matter, acknowledging that it is "under investigation."

Politico's article also touched on an angle of interest, quoting another former federal prosecutor, Harry Litman, who 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."

Litman added, "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. If the evidence proves it, they could be on the hook for everything up to seditious conspiracy."

Of course, if some of those already in custody had evidence they were willing to share with prosecutors and investigators -- in other words, if they were eager to cut some kind of deal -- and that evidence implicated members of Congress, that would obviously be relevant to possible cases.

Again, it's entirely possible there were no meaningful communications between lawmakers and members of the violent mob. Maybe no members conspired in any way with attackers. Perhaps there will be an investigation, which produces nothing of interest implicating any elected officials.

But with all the recent focus on Donald Trump's possible criminal liability -- something the Republican's own lawyers are reportedly concerned about -- it's worth remembering that he may not be the only politician with something to worry about.