- Bennett Nuss
Legal Tracking: Political violence in the United States: A growing threat requiring response
Updated: Mar 10
On Dec. 4, 2022, a defeated Republican candidate for State House in New Mexico was arrested for planning and orchestrating four assassinations via drive-by shooting of newly re-elected Democratic officials in Albuquerque. While nobody was killed, this event is merely the latest in a long string of politically motivated violent crimes within the last several years.
The most prominent examples of political violence since 2022 involve the home invasion and deadly assault of Paul Pelosi, husband of the then-Speaker of the House; the thwarted assassination attempt against Justice Brett Kavanaugh; the attempted kidnapping of Michigan Governor Gretchen Whitmer, and the attempted assassination of Lee Zeldin, the then-Republican candidate in the New York Gubernatorial race in 2022.
These isolated instances are examples of political violence, but the statistics regarding the growth of politically motivated violence among more obscure political figures are disturbing. Illustrating this growth, in 2021, there were more than 9,600 recorded threats against members of Congress (approximately 26 per day); violent threats against federal judges increased by 400%; and about 81% of local officials in a wide-ranging survey indicated that they had experienced harassment, threats or physical violence. While political violence is more politically acceptable among self-identified Republicans (around 40% indicated that violence against the government could be justified), the issue is still prevalent among self-identified Democrats (23% indicated that violence against the government could be justified).
The Department of Homeland Security (“DHS”) has been scrambling to address the problem. In a March 2022 report, the DHS found that there needed to be a concerted effort to establish baseline policies and guidance for dealing with violent domestic extremism, properly educate DHS personnel on how to respond to domestic extremism events and allocate recourses to expand surveillance of domestic threats.
This is not to say that there are no protections for political figures targeted for violence. 18 U.S. Code § 2385 creates considerable penalties for those that engage in violence against the United States, although this legislation is reserved for those whose actions are seditious. This statute has been used in the Jan. 6 prosecutions against ringleaders of the charge into the Capitol; the Department of Justice can seek a maximum sentence of 20 years in prison for the crime.
The United States faces a considerable escalation in politically motivated violence. Still, the current legal apparatus for facing this rising trend is insufficient for dealing with this problem based on its common occurrence.
To overcome this problem, which is clearly a threat to our democratic norms, criminal law practitioners ought to advocate for reforms to the legal system that allow for law enforcement, government actors and those in the legal profession to deal with this issue before it becomes more endemic than it already is.
The DHS should be granted what it asked for in the 2022 report and allow for federal support for localized instances of violence. While threatening federal officials is a Class D or C felony, Congressional and state lawmakers ought to create new statutes making violence against state and local officials a more serious offense and direct further resources to protect civil servants.
Lawyers and judges have a central role in maintaining our legal traditions and norms and advocating for adapting new rules and regulations to meet new threats. As those entrusted with both the ability and responsibility of advocating the rule of law, law practitioners should be among the loudest advocates for a return to a civil society, which can begin by supporting a non-violent political environment at every opportunity.