SUBSCRIBE NOW
As low as $1 for 3 months
SUBSCRIBE NOW
As low as $1 for 3 months

Capitol Police officer's death investigated as homicide; Trump's legal exposure questioned

WASHINGTON – The death of U.S. Capitol Police officer Brian Sicknick is being investigated as a homicide by federal and local authorities – a development that raises the stakes of an already sprawling investigation into possible crimes committed during the violent security breach at the Capitol.

The federal officer's death widens the net on who could face severe charges after a mob of pro-Trump rioters stormed the Capitol Wednesday. It also has raised questions about President Donald Trump's possible legal exposure after he leaves office for any role he may have played in inciting the surge.

Acting Attorney General Jeff Rosen said the Justice Department "will spare no resources in investigating and holding accountable those responsible" for Sicknick's death. An official with knowledge of the matter said any criminal charges related to the officer's death will be federal because the events leading up to it happened on federal property. 

This week's chaos, which led to the death of five people, was the culmination of weeks of resentment fueled by Trump's false claims that the election had been stolen from him. Hours before the security breach, Trump urged his supporters during a rally to go to the Capitol. His personal attorney, Rudy Giuliani, encouraged the cheering crowd to engage in a "trial by combat."

FACT CHECKS: What's true, what's false (and the evidence) about the 2020 election

Ken Kohl, a prosecutor in the U.S. attorney's office in Washington, D.C., said during a call with reporters Friday that investigators "don't expect any charges" related to inciting the violence.

A Justice Department official said the focus of the riot investigation is the storming of the Capitol and the related violence. The official who is not authorized to comment publicly said investigators were not currently looking at those who may have played a role in encouraging the crowd, including Trump and others who addressed the group prior to the assault. The official, however, cautioned that a broader inquiry has not been ruled out.

Asked if Trump should be a focus of the ongoing criminal investigation, Jim Pasco, executive director of the Fraternal Order of Police, said: "You go where the evidence takes you. If the evidence leads there, then that’s the way it is."

Pasco's group, the nation’s largest police union, endorsed Trump in the November election.

Capitol police officers in riot gear push back demonstrators who try to break a door of the U.S. Capitol on Wednesday, Jan. 6, 2021, in Washington.

During a call with reporters earlier this week, Michael Sherwin, the top federal prosecutor in Washington, D.C., did not rule out the possibility of scrutinizing actions by the president, saying investigators are looking at "all actors."

'Unfathomable':Capitol Police security breakdown prompts chief's resignation

The Jan. 6 siege prompted an hours-long lockdown and disrupted what should've been a largely ceremonial process of counting state-certified Electoral College votes. 

Sicknick was injured while "physically engaging with protesters," Capitol Police said. He collapsed after returning to his office and was taken to a hospital, where he died Thursday night. Four others, including a protester who was shot by a Capitol Police officer, have died and several officers have been injured. 

Capitol Police officer Brian Sicknick:Sicknick who died after pro-Trump riot was veteran

Trump's legal exposure

Legal experts say charging a former president is likely to have legal and political roadblocks. 

"An obstacle is always proving intent," said Bruce Udolf, a former federal prosecutor who served as an associate independent counsel in the Clinton Whitewater investigation. "Anybody could argue that they did not intend for their words to cause such violence." 

Udolf cautioned that prosecutors aren't likely to aggressively go after people who are not directly responsible for the officer's death. 

"But," he added, "this is serious."

Jimmy Gurule, a former Justice Department official in the George H.W. Bush administration and a University of Notre Dame law professor, said Trump's conduct warrants serious scrutiny.

Charges pile up:Actions by 'all actors,' including Trump, may be under scrutiny following violence at the Capitol, prosecutor says

"It would be a tragedy for this lawlessness to go unpunished," Gurule said.

Still, he acknowledged that proving Trump's intent would be a legal hurdle.

"I think you can infer intent from the president's own words," he said, referring to Trump's call for his supporters to assemble in Washington and later exhorting them to make their case to the Capitol building. "I've prosecuted cases with less evidence than what exists here."

Patrick Cotter, a former federal prosecutor in Manhattan, said it would be "trickier" to build a criminal case against someone who incited the violence that led to the officer's death. 

"But certainly prior cases have held that people who lead lynchings and other violent mob actions can be liable for at least reckless homicide if they initiate action that recklessly creates a likelihood of serious injury or death," Cotter said.

Felony murder?

Sicknick's death has also raised questions on whether felony murder – a controversial legal doctrine that allows prosecutors to charge someone with murder even in cases of unintentional or accidental deaths – could be on the table against any rioters involved.

Justice Department officials declined to elaborate Friday on whether a felony murder charge is being considered. 

"Felony murder is always in play in something like this," Kohl, the prosecutor at the U.S. attorney’s office in Washington, D.C., said. "Until we get all the facts and conduct the investigation, talk to witnesses, review any videos, we're not in a position to comment."

Riot at the Capitol:US Capitol rioters are being identified and fired from jobs

Elliott Jacobson, a former Manhattan federal prosecutor, said pursuing a felony murder case would be an "aggressive" but "legally valid" step for prosecutors.

"It would send a clear message that when you engage in those violent activities that resulted in death, you will be held accountable," Jacobson said. "The whole idea of the felony murder rule is meant to deter other kinds of violent conduct that might result in someone getting killed. People have argued for ages that it's unfair, but prosecutors say it's entirely fair … It's meant to deter people."

The felony murder statute allows prosecutors to file murder charges if someone died during the course of a crime. For example, a bank robber can be charged with murder if an accomplice kills somebody during the robbery. In the federal system, several underlying crimes, including arson, kidnapping, treason, espionage, sexual abuse, child abuse and burglary, could lead to felony murder charges. 

In the case of the Capitol breach and the officer's death, prosecutors can pursue burglary charges for unlawfully entering the building and tack on felony murder, Jacobson said.  

Someone who organized the disruption at the Capitol or had a physical confrontation with Sicknick that led to his injuries are at greater legal risk than rioters who simply climbed up walls and windows, said Renato Mariotti, a former federal prosecutor. Much would also depend on the circumstances and cause of Sicknick's death.

'A colossal failure':How were pro-Trump rioters able to breach Capitol security?

"If the prosecutor's charging some conspiracy to enter the grounds and disrupt government business … is it possible that if someone dies in the course of that, (rioters) could be potentially held responsible? Yes," Mariotti said. "Whether that charge occurs depends on the connection between what a particular defendant was doing and the death of the officer."

The chaos has already led to at least 55 criminal cases filed by the Justice Department against rioters who were charged with unlawful entry, gun violations, theft, assault and others.

Among those who have been charged was Richard Barnett, an Arkansas man who was photographed lounging in House Speaker Nancy Pelosi's office. Barnett, who has been arrested, was charged with entering and remaining on restricted grounds, violent entry and theft for taking materials out of Pelosi's office, officials said.

Derrick Evans, a West Virginia legislator who recorded himself storming the Capitol, was charged with illegally entering the building.

Charges filed in Capitol riot:Man in Pelosi desk photo, others arrested from Capitol siege

Who stormed the Capitol:Capitol mob drew Trump supporters of all stripes, from a fireman to a 'QAnon shaman'

Lonnie Coffman, of Alabama, is facing charges after officers found firearms and 11 Molotov cocktails in his possession. 

"We are far from done. The rioting and destruction we saw will not be tolerated by the FBI … We will continue to investigate all allegations of criminal activity," Steven D'Antuono, assistant director in charge of the FBI's Washington office, said during a call with reporters Friday. "Just because you've left the D.C. region, you can still expect a knock on the door if we find out that you were part of the criminal activity at the Capitol."

Sicknick joined Capitol Police in July 2008 and was part of the department's First Responder's Unit at the time of his death. He was a member of the New Jersey National Guard from 1999 to 2003. He was deployed in Saudi Arabia and Kyrgyzstan and was honorably discharged. 

"The entire USCP Department expresses its deepest sympathies to Officer Sicknick’s family and friends on their loss, and mourns the loss of a friend and colleague," Capitol Police said in a statement.

Contributing: Tom Vanden Brook