D.C. Attorney General Karl Racine is looking into possible misdemeanor charges for speakers who encouraged the crowd at a rally before the Capitol riot. Investigative Reporter Jodie Fleischer explains.
As investigators work to identify and arrest those who rioted at the U.S. Capitol last week, many people are wondering if the president and others who encouraged the crowd beforehand will face criminal charges.
The U.S. attorney in Washington, D.C., has not ruled out filing felony charges for inciting a riot, but he also hasn't committed to doing it.
Enter D.C. Attorney General Karl Racine, who says he's now investigating, too, even though his prosecution authority is limited only to misdemeanors.
"Those were outrageous comments that those individuals, including the president of the United States made. Clearly the crowd was hyped up, juiced up," Racine said.
On the morning of Jan. 6, U.S. Rep. Mo Brooks (R-Ala.) yelled to the crowd of thousands gathered for the rally that "today is the day American patriots start taking down names and kicking ass."
The president's attorney, Rudy Giuliani, told the crowd there should be "trial by combat."
The president's son, Donald Trump, Jr., yelled, "Stand up and fight! Stand up and hold your representatives accountable."
"If you don't fight like hell, you're not gonna have a country anymore," President Donald Trump told his supporters as he directed them to march to the Capitol, where members of Congress were in the process of certifying the election.
Racine called the comments "dangerous" and said he's investigating whether the language the rally speakers used rises to the level of inciting violence, a criminal misdemeanor.
Andrew Harnik/AP
Capitol police stand with guns drawn near a barricaded door as protesters try to break into the House Chamber at the Capitol, Jan. 6, 2021, in Washington, DC.
(Photo by SAUL LOEB/AFP via Getty Images)
Supporters of US President Donald Trump enter the US Capitol’s Rotunda on Jan. 6, 2021, in Washington, DC.
(Photo by SAUL LOEB/AFP via Getty Images)
Supporters of US President Donald Trump enter the US Capitol’s Rotunda on Jan. 6, 2021, in Washington, DC.
(Photo by SAUL LOEB/AFP via Getty Images)
Supporters of US President Donald Trump enter the US Capitol’s Rotunda on Jan. 6, 2021, in Washington, DC.
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U.S. Capitol police officers take positions as demonstrators enter the U.S. Capitol during a protest in Washington, DC, on Wednesday, Jan. 6, 2021.
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A protester is seen hanging from the balcony in the Senate Chamber on Jan. 6, 2021 in Washington, DC.
(Photo by SAUL LOEB/AFP via Getty Images)
Supporters of US President Donald Trump enter the US Capitol’s Rotunda as reported tear gas smoke fills a corridor on Jan. 6, 2021, in Washington, DC.
(Photo by SAUL LOEB/AFP via Getty Images)
US Capitol police officers try to stop supporters of US President Donald Trump to enter the Capitol on Jan. 6, 2021, in Washington, DC.
(Photo by SAUL LOEB/AFP via Getty Images)
Supporters of US President Donald Trump enter the US Capitol on Jan. 6, 2021, in Washington, DC.
(Photo by SAUL LOEB/AFP via Getty Images)
Supporters of US President Donald Trump roam under the Capitol Rotunda after invading the Capitol building on Jan. 6, 2021, in Washington, DC.
(Photo by SAUL LOEB/AFP via Getty Images)
US Capitol police officers try to stop supporters of US President Donald Trump to enter the Capitol on Jan. 6, 2021, in Washington, DC.
(Photo by SAUL LOEB/AFP via Getty Images)
Supporters of US President Donald Trump enter the US Capitol on Jan. 6, 2021, in Washington, DC.
(Photo by SAUL LOEB/AFP via Getty Images)
Supporters of US President Donald Trump confront Capitol police officers enter the US Capitol on Jan. 6, 2021, in Washington, DC.
Photo by SAUL LOEB/AFP via Getty Images
Supporters of US President Donald Trump roam under the Capitol Rotunda after invading the Capitol building on January 6, 2021, in Washington, DC. – Demonstrators breeched security and entered the Capitol as Congress debated the a 2020 presidential election Electoral Vote Certification. (Photo by Saul LOEB / AFP) (Photo by SAUL LOEB/AFP via Getty Images)
(Photo by OLIVIER DOULIERY/AFP via Getty Images)
Police hold back supporters of US President Donald Trump as they gather outside the US Capitol’s Rotunda on Jan. 6, 2021, in Washington, DC.
Win McNamee/Getty Images
Protesters gather inside the U.S. Capitol Building on Jan. 6, 2021, in Washington, DC.
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A protester is seen inside the US Capitol Building on Jan. 6, 2021, in Washington, DC.
(Photo by SAUL LOEB/AFP via Getty Images)
A supporter of US President Donald Trump sits at a desk after invading the Capitol Building on Jan. 6, 2021, in Washington, DC.
(Photo by SAUL LOEB/AFP via Getty Images)
Supporters of US President Donald Trump protest in the US Capitol’s Rotunda on Jan. 6, 2021, in Washington, DC.
(Photo by SAUL LOEB/AFP via Getty Images)
Supporters of US President Donald Trump protest in the US Capitol’s Rotunda on Jan. 6, 2021, in Washington, DC.
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Capitol police try to hold back protesters outside the east doors to the House side of the Capitol in Washington, DC, Jan. 6, 2021.
J. Scott Applewhite/AP
House of Representatives members leave the floor of the House chamber as protesters try to break into the chamber at the U.S. Capitol on Wednesday, Jan. 6, 2021, in Washington, DC.
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People shelter in the House gallery as protesters try to break into the House Chamber at the Capitol, Jan. 6, 2021, in Washington, DC.
WASHINGTON, DC – JANUARY 06: Protesters interact with Capitol Police inside the U.S. Capitol Building on January 06, 2021 in Washington, DC. Congress held a joint session today to ratify President-elect Joe Biden’s 306-232 Electoral College win over President Donald Trump. A group of Republican senators said they would reject the Electoral College votes of several states unless Congress appointed a commission to audit the election results. (Photo by Win McNamee/Getty Images)
TOPSHOT – Damage is seen inside the US Capitol building early on January 7, 2021 in Washington, DC, after supporters of US President Donald Trump breeched security and entered the building during a session of Congress. – Donald Trump’s supporters stormed a session of Congress held today, January 6, to certify Joe Biden’s election win, triggering unprecedented chaos and violence at the heart of American democracy and accusations the president was attempting a coup. (Photo by Olivier DOULIERY / AFP) (Photo by OLIVIER DOULIERY/AFP via Getty Images)
(Photo by Jon Cherry/Getty Images)
WASHINGTON, DC – JANUARY 06: Two members of a pro-Trump mob look out through a broken window from inside the Capitol Building after breaking into it on January 6, 2021 in Washington, DC. A pro-Trump mob stormed the Capitol, breaking windows and clashing with police officers. Trump supporters gathered in the nation’s capital today to protest the ratification of President-elect Joe Biden’s Electoral College victory over President Trump in the 2020 election. (Photo by Jon Cherry/Getty Images)
(Photo by Jon Cherry/Getty Images)
WASHINGTON, DC – JANUARY 06: A member of a pro-Trump mob screams out at the crowd from the inside of the Capitol Building after breaking into it on January 6, 2021 in Washington, DC. A pro-Trump mob stormed the Capitol, breaking windows and clashing with police officers. Trump supporters gathered in the nation’s capital today to protest the ratification of President-elect Joe Biden’s Electoral College victory over President Trump in the 2020 election. (Photo by Jon Cherry/Getty Images)
(Photo by Jon Cherry/Getty Images)
WASHINGTON, DC – JANUARY 06: A member of a pro-Trump mob shatters a window with his fist from inside the Capitol Building after breaking into it on January 6, 2021 in Washington, DC. A pro-Trump mob stormed the Capitol, breaking windows and clashing with police officers. Trump supporters gathered in the nation’s capital today to protest the ratification of President-elect Joe Biden’s Electoral College victory over President Trump in the 2020 election. (Photo by Jon Cherry/Getty Images)
AP Photo/Manuel Balce Ceneta
Supporters of President Donald Trump are confronted by Capitol Police officers outside the Senate Chamber inside the Capitol, Wednesday, Jan. 6, 2021 in Washington. (AP Photo/Manuel Balce Ceneta)
(Photo by SAUL LOEB/AFP via Getty Images)
Supporters of US President Donald Trump sit inside the office of US Speaker of the House Nancy Pelosi as he protest inside the US Capitol in Washington, DC, January 6, 2021. – Demonstrators breeched security and entered the Capitol as Congress debated the a 2020 presidential election Electoral Vote Certification. (Photo by SAUL LOEB / AFP)
(Photo by SAUL LOEB/AFP via Getty Images)
A supporter of US President Donald Trump sits inside the office of US Speaker of the House Nancy Pelosi as he protest inside the US Capitol in Washington, DC, January 6, 2021. – Demonstrators breeched security and entered the Capitol as Congress debated the a 2020 presidential election Electoral Vote Certification. (Photo by SAUL LOEB / AFP)
(Photo by SAUL LOEB/AFP via Getty Images)
A supporter of US President Donald Trump sits inside the office of Speaker of the House Nancy Pelosi as he protest inside the US Capitol in Washington, DC, January 6, 2021. – Demonstrators breeched security and entered the Capitol as Congress debated the a 2020 presidential election Electoral Vote Certification. (Photo by SAUL LOEB / AFP)
(Photo by ROBERTO SCHMIDT/AFP via Getty Images)
Trump supporters clash with police and security forces as they gather inside the US Capitol in Washington, DC on January 6, 2021. – Demonstrators breeched security and entered the Capitol as Congress debated the a 2020 presidential election Electoral Vote Certification. (Photo by ROBERTO SCHMIDT / AFP)
(Photo by ROBERTO SCHMIDT/AFP via Getty Images)
Trump supporters clash with police and security forces as they gather inside the US Capitol in Washington, DC on January 6, 2021. – Demonstrators breeched security and entered the Capitol as Congress debated the a 2020 presidential election Electoral Vote Certification. (Photo by ROBERTO SCHMIDT / AFP)
(Photo by ROBERTO SCHMIDT/AFP via Getty Images)
Trump supporters clash with police and security forces as they gather inside the US Capitol in Washington, DC on January 6, 2021. – Demonstrators breeched security and entered the Capitol as Congress debated the a 2020 presidential election Electoral Vote Certification. (Photo by ROBERTO SCHMIDT / AFP)
(Photo by ROBERTO SCHMIDT/AFP via Getty Images)
Supporters of US President Donald Trump protest inside the US Capitol on January 6, 2021, in Washington, DC. – Demonstrators breeched security and entered the Capitol as Congress debated the a 2020 presidential election Electoral Vote Certification. (Photo by ROBERTO SCHMIDT / AFP)
Roberto Schmidt/AFP via Getty Images
Supporters of US President Donald Trump protest inside the US Capitol on Jan. 6, 2021, in Washington, DC. – Demonstrators breeched security and entered the Capitol as Congress debated the a 2020 presidential election Electoral Vote Certification. (Photo by ROBERTO SCHMIDT / AFP)
(Photo By Caroline Brehman/CQ-Roll Call, Inc via Getty Images)
UNITED STATES – JANUARY 6: A U.S. Capitol Police officer maces a Trump rioter who broke through a window on the first floor of the Capitol on Wednesday, Jan. 6, 2021. (Photo By Caroline Brehman/CQ-Roll Call, Inc via Getty Images)
(Photo by OLIVIER DOULIERY/AFP via Getty Images)
A Congress staffer holds his hands up while Capitol Police Swat team check everyone in the room as they secure the floor of Trump suporters in Washington, CD on January 6, 2021. – Donald Trump’s supporters stormed a session of Congress held today, January 6, to certify Joe Biden’s election win, triggering unprecedented chaos and violence at the heart of American democracy and accusations the president was attempting a coup. (Photo by Olivier DOULIERY / AFP)
(Photo By Caroline Brehman/CQ-Roll Call, Inc via Getty Images)
UNITED STATES – JANUARY 6: A U.S. Capitol Police officer is treated for injuries on the first floor of the Capitol on Wednesday, Jan. 6, 2021. (Photo By Caroline Brehman/CQ-Roll Call, Inc via Getty Images)
(Photo by OLIVIER DOULIERY/AFP via Getty Images)
A Capitol Police Swat team member patrols the US Capitol in Washington, CD on January 6, 2021. – Donald Trump’s supporters stormed a session of Congress held today, January 6, to certify Joe Biden’s election win, triggering unprecedented chaos and violence at the heart of American democracy and accusations the president was attempting a coup. (Photo by Olivier DOULIERY / AFP)
Photographer: Ting Shen/Bloomberg via Getty Images
A members of the U.S. Capitol Police responds to demonstrators at the U.S. Capitol in Washington, D.C., U.S. on Wednesday, Jan. 6, 2021. The U.S. Capitol was placed under lockdown and Vice President Mike Pence left the floor of Congress as hundreds of protesters swarmed past barricades surrounding the building where lawmakers were debating Joe Biden’s victory in the Electoral College. Photographer: Ting Shen/Bloomberg via Getty Images
Photographer: Ting Shen/Bloomberg via Getty Images
Members of the U.S. Capitol Police respond to the demonstrators at the U.S. Capitol in Washington, D.C., U.S. on Wednesday, Jan. 6, 2021. The U.S. Capitol was placed under lockdown and Vice President Mike Pence left the floor of Congress as hundreds of protesters swarmed past barricades surrounding the building where lawmakers were debating Joe Biden’s victory in the Electoral College. Photographer: Ting Shen/Bloomberg via Getty Images
"Rather than calm them down or at least emphasize the peaceful nature of what protests need to be, they really did encourage these folks and riled them up," Racine said.
D.C.'s incitement of violence law was passed about a decade ago, and in that time, the attorney general's office has only prosecuted about 20 cases using it. U.S. Rep. Hakeem Jeffries (D-N.Y.), who chairs the House Democratic Caucus, applauded Racine's consideration of using it now.
"The reason there were thousands of people riled up and whipped into a frenzy is because they believe Donald Trump and this lie that the election was stolen from him, so they came here to overthrow the government," Jeffries said.
Racine is also reviewing whether a misdemeanor charge from his office might withstand the reach of a presidential pardon, since in the District, local felony charges are handled by the U.S. Attorney's Office, which means they're pardonable.
"I would just expect that the D.C. attorney general will follow the facts, apply the law, apply the constitution, conduct a thorough investigation and let the chips fall where they may," Jeffries said.
Racine says there is still more investigating to do and he plans to coordinate with the U.S. Attorney's Office's current and potential future leadership so as not to interfere with potentially more serious charges.
The News4 I-Team reached out to those who spoke at the rally. A spokesperson for Congressman Brooks said his speech had nothing to do with the illegal breach of the Capitol and referred to fighting to win future elections. Brooks issued this statement.
President Trump told reporters this week his remarks were “totally appropriate."
Reported by Jodie Fleischer, produced by Rick Yarborough, and shot and edited by Steve Jones and Caroline Tucker.
