MICHEL MARTIN, HOST:

We're going to go back now to the questions of accountability and the way forward after the violence at the Capitol Wednesday. In recent years, far-right extremism has become increasingly visible and perhaps even accepted in some quarters in part because of President Trump's own rhetoric or refusal to criticize it. So where do we go from here? We called Mary McCord to help us think about that. She served as the acting assistant attorney general for national security at the Department of Justice. And she is currently the legal director at the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center, where she's been researching and writing about these issues.

Mary McCord, thank you for joining us once again. Although, of course, we're very sorry about the circumstances.

MARY MCCORD: Yes. Thank you for having me. And I couldn't agree more. It's a terrible situation that we find ourselves in having to talk about this.

MARTIN: So to begin with, let's talk about how to talk about this. I mean, there have been a lot of terms used to describe what happened Wednesday. Some are calling it a protest. Others are calling it an insurrection. Some are calling it domestic terrorism. Given your expertise, how do you characterize what happened Wednesday and why?

MCCORD: I mean, I guess in some ways it's all of the above, but I think it certainly most jumps out at me from a legal perspective as an insurrection because it was an attempt not so much to overthrow the entire government but to prevent the fulfillment of governmental functions, which on that day, January 6, was the joint session of Congress who gathered pursuant to federal law to count the Electoral College votes of the states and to certify the president and the vice president as the winners of the election. And that would be Joe Biden and Kamala Harris. And so this insurrection was an attempt to stop that and in fact, for at least several hours, was successful in preventing that vote.

MARTIN: Can you talk a bit about how the law treats acts of violence committed under these kinds of circumstances? Because as you certainly know, there has been a very robust conversation going on about the fact that these rioters seem to have been treated with a lot more leniency than we have seen in other circumstances - social justice protests, Black Lives Matter. So there are two questions there. One is a tactical question, how law enforcement specifically chose to deal with it. But then there's the legal question. I mean, does the law see the - this kind of conduct conducted for these particular reasons in a particular way?

MCCORD: I mean, the criminal law has all kinds of - really, a menu of options that are applicable to the conduct of the insurrectionists at the Capitol on Wednesday; I mean, everything from the assault on the federal law enforcement officials, the violent and unlawful entry into a restricted U.S. government building, the destruction of U.S. government property, the stealing of U.S. government property, insurrection itself, seditious conspiracy. And I also would say, even though there is not a crime called terrorism that applies to this, this would certainly fit within the definition of crimes intended to intimidate or coerce and influence a policy through intimidation or coercion.

In terms of the handling of this differently than what we saw over the summer, I think there's no question it was very much soft policing, so soft that it was immediately overrun by the insurrectionists and the rioters. And we saw hard policing this summer in Washington, D.C., as well as other places around the country. And I think there's a couple reasons for that. I mean, one is I think, you know, we'd be foolish to ignore the fact of the difference between this being a bunch of white people, primarily white people who were supporters of the president as opposed to the summer's events being racial justice demonstrators who were very mixed race. Certainly, obviously, a lot of Black Americans but also a lot of white Americans and other Americans of color and non-Americans as well participated in those. And I think that's something that has to be looked at, that disparity that seems to be based on, at least in many ways, the color of the skin and the support - the political support of the protesters.

But beyond that, I think there's some - also just factual tactical missteps here. I think the Capitol Police - you know, I think in part as a result of criticism of heavy-handed techniques this summer, there was an effort by law enforcement to try to engage in soft policing, which I would say, in general, we should agree with, right? I think we'd like to see more soft policing instead of hard policing when it comes to First Amendment-protected activity.

The problem was this devolved from First Amendment-protected activity into a violent mob really fast. And at that point, that soft policing is not good enough. And that's where the Capitol police were completely overwhelmed, unprepared. And it's frankly unfathomable to me why they were so unprepared because the intelligence was available, the information was available. It was online. We knew these demonstrators were going to go to the Capitol. We knew they were going to encircle the Capitol, and we knew that at least some among them wanted to do so violently. And once you have a crowd that becomes a mob, even those who had no intent to engage in violence are oftentimes swept up into that violence.

MARTIN: President Trump will be gone in a couple of weeks. He will be - he will no longer be serving in that position, whether it's days from now or whether it's a week from now. It's a short period of time where he will no longer hold that office. But he as a person remains, and he still has access to some means of communication. So the question is - becomes - does this kind of - should we be planning for an era in which street violence promulgated by whoever is a reality? And if that is the case, what should happen?

MCCORD: I think we have to recognize that, you know, maybe this is a wake-up. Like, we saw something that I don't think most people thought they would ever see in their lifetimes in America. A lot of the world didn't think they'd see that in America. And we saw it on Wednesday. And it's scary, and it's frightening. And I have to wonder - if they'd have gotten their hands on some actual legislators or Mike Pence, like, what might have happened to those legislators? It could have been worse even than it was. And it was quite bad. And I hope that's a wake-up call for people that we have got to stop with the extremism and, you know, get back to the business of trying to create a country where people have opportunity, you know? When everyone has opportunity, everyone can prosper. It's not a zero-sum game. And that's what I think people don't understand.

MARTIN: Mary McCord is the legal director at the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center. She also served as acting assistant attorney general for national security at the U.S. Department of Justice. That was from 2016 to 2017.

Mary McCord, thank you so much for sharing your expertise with us once again.

MCCORD: Thank you, Michel. Transcript provided by NPR, Copyright NPR.