Domestic Terrorism and the Attack on the U.S. Capitol

Domestic Terrorism and the Attack on the U.S. Capitol

INSIGHTi
Domestic Terrorism and the Attack on the U.S.
Capitol
January 13, 2021
On January 6, 2021, a large group of individuals breached the U.S. Capitol while Congress was in
session. Members were voting on whether or not to certify President-Elect Joe Biden’s election victory,
and many participants in the attack al egedly intended to thwart this effort. According to media coverage,
violent participants injured scores of District of Columbia Metropolitan Police and U.S. Capitol Police
officers and kil ed one, while four civilians have died as wel . In light of this incident and the violent
threat to the operation of the U.S. Congress, policymakers may be interested in whether this incident may
be treated as domestic terrorism and if the participants are domestic terrorists, among other issues. This
Insight discusses whether or not participants and their actions may be categorized as domestic terrorists
and domestic terrorism, respectively, and issues around designating domestic fringe groups, such as the
Boogaloo Bois and Proud Boys who were al egedly involved in the attack, as terrorist organizations. It
concludes with possible next steps for Congress.
Is this domestic terrorism?
The federal definition of domestic terrorism describes domestic terrorists as Americans who commit
ideological y driven crimes in the United States but lack foreign direction or influence. The Federal
Bureau of Investigation (FBI) general y relies on two sources to define domestic terrorism. First, the Code
of Federal Regulations characterizes “terrorism” as including “the unlawful use of force and violence
against persons or property to intimidate or coerce a government, the civilian population, or any segment
thereof, in furtherance of political or social objectives.” Second, 18 U.S.C. §2331(5) more narrowly
defines “domestic terrorism.” This definition comes from Section 802 of the USA PATRIOT Act (P.L.
107-56). According to 18 U.S.C. §2331(5), domestic terrorism occurs primarily within U.S. territorial
jurisdiction, and involves
(A) acts dangerous to human life that are a violation of the criminal laws of the United States or of
any State;
(B) appear to be intended—
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or coercion; or
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(iii) to affect the conduct of a government by mass destruction, assassination, or kidnapping…
The participants’ actions seem to fit both definitions. Video evidence and media reports portray
participants committing acts dangerous to human life and those actions appeared to be intended both to
influence the policy of the U.S. government by intimidation and affect its conduct through possible
assassination and/or kidnapping.
Are the participants domestic terrorists?
While the participants’ actions on January 6 may be consistent with the definition of domestic terrorism, it
is important to note that domestic terrorism is not a chargeable offense on its own. There is no federal
criminal statute that establishes criminal penalties solely for “domestic terrorism,” although it may be an
element of other federal crimes or provide an enhanced sentence. In other words, an individual may
commit criminal acts that are widely considered domestic terrorism and be prosecuted for the criminal
acts themselves, but an individual cannot be charged with committing an act of domestic terrorism under
current federal law. For example, Timothy McVeigh, widely considered a domestic terrorist, was
convicted of murder, conspiracy, and using a weapon of mass destruction in the 1995 bombing of the
Alfred P. Murrah Federal Building in Oklahoma City that kil ed 168 people, but he was not convicted of
domestic terrorism.
Aside from the statutory definitions regarding the crime of domestic terrorism, the FBI has historical y
emphasized particular qualities inherent to the actors who engage in domestic terrorism. According to the
FBI, domestic terrorists do not simply operate in the homeland, but they also lack foreign direction. In
short, the FBI’s practical, shorthand definition of domestic terrorists is “Americans attacking Americans
based on U.S.-based extremist ideologies.” In May 2019 Congressional testimony, Michael McGarrity,
former Assistant Director for the FBI’s Counterterrorism Division, stated that “[d]omestic terrorists are
individuals who commit violent criminal acts in furtherance of ideological goals stemming from domestic
influences, such as racial bias and anti-government sentiment.” Again, the participants of the January 6
attack on the Capitol seem to fit this construction.
Are right wing extremist groups that participated in the
Capitol attack terrorist organizations?
The FBI does not official y designate domestic terrorist organizations, but they have openly delineated
domestic terrorist “threats.” They identified domestic terrorism threats to include criminal activity by
certain groups, such as the Proud Boys, or by individuals that adhere to a certain ideology, such as antifa.
While the FBI has confirmed in public hearings that extremists are subjects of ongoing domestic terrorism
investigations, it declines to designate any organization a “domestic terrorist organization.” Doing so may
infringe on First Amendment-protected free speech—belonging to an ideological group in and of itself is
not a crime in the United States. In July 2019 congressional testimony, Director Wray said the FBI does
not investigate ideology; it investigates violence.
While individuals involved in the attack on the Capitol may belong to extremist groups such the Proud
Boys and Boogaloo Bois or adhere to their ideology, the federal government declines to designate these
groups as domestic terrorist groups and instead focuses on the violent criminal acts of individuals,
whether members of these groups or not.

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Next Steps
In light of the attack on the U.S. Capitol and its domestic terrorism nexus, Congress may wish to consider
any number of changes to related law and policy. Among other options, it could decide to make domestic
terrorism a chargeable federal offense under Title 18, the main criminal code of the federal government. It
could devote additional resources to the FBI, the agency with lead responsibility for terrorism
investigations at the federal level, to counter the domestic terrorism threat. Further, it could authorize and
devote resources to improving data collection and sharing on this issue (currently, the federal government
does not maintain a publicly available database with information on incidents of domestic terrorism).
Much of what Congress and the public know about the domestic terrorism threat stems from the FBI’s
congressional testimony.

Author Information

Lisa N. Sacco

Analyst in Illicit Drugs and Crime Policy

Disclaimer
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