At least twomay have committed "crimes of terrorism," prosecutors say, which is cause to hold them without bail as they await trial — and may mean longer sentences should they be found guilty.
and , both members of the far-right group the , were each charged with a list of crimes that included destroying or removing government property, entering restricted areas and obstructing official proceedings. And this month, as prosecutors argued the men should not be released before trial, the government said their crimes amounted to "terrorism" — an allegation that is not itself a charge, but could influence prison sentences if the men are found guilty.
Prosecutors wrote in a February 3 filing that Nordean, 30, was eligible to be detained before his trial because his case involved a "crime of terrorism." He helped a group of rioters remove barricades surrounding the U.S. Capitol, prosecutors say, and the statute he's charged under is eligible for a terrorism sentencing enhancement — a rule that allows judges to lengthen prison terms if a crime is deemed to be terrorism.
Similarly, prosecutors argued during a February 10 hearing that Pezzola, 43, should be detained because his charge of destroying government property qualifies as a crime of terrorism. Prosecutors say Pezzola ripped a riot shield away from a Capitol Police officer and was later filmed using the shield to smash through a window of the U.S. Capitol.
Both men are still being held. The court has not made a final decision on Nordean's release. An attorney for Pezzola petitioned the court on Thursday to reconsider its order to detain him, noting that his client is interested in negotiating a potential plea deal with the government. "He seeks to make amends," the filing said.
While U.S. law makes it illegal to help foreign terrorist organizations like ISIS or al-Qaida, domestic terrorism is not itself a criminal charge — but it is a factor that judges can consider when choosing a defendant's sentence.
Terrorism sentencing enhancements can be applied only to certain offenses — such as Nordean's and Pezzola's charges of destroying or removing federal property — and the government must also prove the crime was "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct," according to the law.
In legal proceedings this month, the government drew attention to the fact that both Pezzola and Nordean had been charged with destroying or removing government property, a charge which could be deemed terrorism during sentencing. A Department of Justice spokesperson told CBS News, "For purposes of detention, or determining whether a defendant should be held prior to trial, the court can consider whether the crime satisfied violence with a political motive."
While the government has so far charged more than a dozen Capitol rioters under the same statute, the DOJ would not say whether it planned to invoke crimes of terrorism in other cases.
Although prosecutors invoked the potential acts of terrorism during hearings to decide whether the two men should be released on bail, the allegations could also loom over the defendants as the cases proceed to trial and potentially sentencing.
Former Department of Justice prosecutor Adam Fels said prosecutors' goals may be twofold in mentioning terrorism during this early stage of the case. "It makes it less likely that the person will be able to get out on bond," Fels said, "but it is also a substantial hammer that the prosecutors can hang over or hold over the defendants." Fels said the longer sentences associated with terrorism could push defendants to cooperate with the government and share information about other accused rioters.
If Pezzola and Nordean are found guilty, Fels said on the destruction of property charge alone they could each face a 10-year sentence if the judge finds the crime was politically motivated, and therefore considered terrorism. Without the terrorism sentencing enhancement, and without other factors a judge can consider at sentencing, the court could give a sentence of less than 10 years, and possibly no prison time at all.
As of last week, a DOJ spokesperson said, federal prosecutors have charged approximately 234 people with crimes during the January 6 Capitol riot.