Assaulting a Federal Official's Family Member

A quick overview of the law

Speaker Pelosi’s husband Paul was attacked by a man who entered their San Francisco home and reportedly called for Nancy Pelosi; a situation eerily reminiscent of January 6 when the mob roamed through the Capitol, calling her name. Paul Pelosi was seriously injured, but is expected to recover. His attacker is now in custody.

It’s 1:00 pm, Central Time, so this is preliminary and I expect more information to come out. But I wanted to get you a baseline of legal information to help you process this very serious event.

It’s a federal crime to assault a family member of a federal official to intimidate or interfere with their official duties, including the Speaker of the House. CNN has reported that the intruder tried to tie up Paul Pelosi “until Nancy got home” according to sources.

18 USC 115 provides, in part: (1)Whoever—

(A) assaults, kidnaps, or murders, or attempts or conspires to kidnap or murder, or threatens to assault, kidnap or murder a member of the immediate family of a United States official…with intent to impede, intimidate, or interfere with such official…while engaged in the performance of official duties, or with intent to retaliate against such official…on account of the performance of official duties,

(iv) if the assault resulted in serious bodily injury…or a dangerous weapon was used during and in relation to the offense, [shall be sentenced to] a term of imprisonment for not more than 30 years.

Although this statute looks like a good fit for the conduct at first glance, it’s worth noting that it requires that the assault be done "with the intent to impede, intimidate, or interfere with" such Federal official "while engaged in the performance of official duties, or with intent to retaliate against" such Federal official. If there’s going to be a federal prosecution, there will need to be evidence to thread that needle. And there is a certain amount of fog of war this early on in a case—the dust will have to settle, before investigators know what all of the facts are.

DOJ’s guidance to federal prosecutors suggests that cases like this are often best left to the state for prosecution: “In many instances, a crime against a family member of a Federal official, even if prompted by a defendant's opposition to policies implemented by the official, can be adequately handled by state and local authorities without Federal involvement.” But the Speaker is third in line to the presidency, and that makes for a compelling federal interest here. If the evidence lines up as it would seem to, a federal prosecution, which can proceed quickly and has serious sentencing potential makes sense.

There can also be charges by both state and federal prosecutors here. In fact, the defendant is reportedly being held on state charges, including attempted murder. Although in some cases, state charges are brought to arrest the defendant and then dismissed to permit a federal prosecution to proceed, it’s possible to pursue both. There’s no double jeopardy problem. That only applies to charges brought by the same “sovereign,” i.e. the federal government couldn’t charge a defendant in two separate cases, but there can be charges from the two separate sovereigns, state and federal.

The statute carries multiple possible penalties, depending on how severe the attack is. The part of the statute I’ve cited above seems like the section most likely to apply. It provides a 30-year maximum sentence, based on the use of the hammer as a deadly weapon and also because of the serious nature of the injuries, which required surgery. The code defines a serious bodily injury as one that involves a risk of death, extreme pain, extracted or prolonged disfigurement, or protracted loss of function. If for some reason Pelosi’s injuries were deemed less serious, there would still be a statutory maximum sentence of 20 years in the federal system. The sentencing guidelines would likely produce a lower, but still significant sentence, particularly if the defendant has serious criminal history.

There is certainly lots more information to come in the next hours and days. So grateful that Paul Pelosi sounds like he’s headed towards a full recovery. But it’s incumbent upon everyone in the public square, including a certain former president, to roundly condemn political violence. That doesn’t just mean words of condolence to the Speaker and concern about her husband’s injuries. Snark connecting this targeted attack to Republican arguments about violent crime It means condemning the rising tide of political violence in our country. Condoning it; tolerating, if not encouraging it to serve political ends, has brought us to a dangerous point in our history. It needs to stop here.

We’re in this together,

Joyce