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‘Very Different’ from ‘Rioting’: Law Professor Distinguishes Detention of CBS ‘Late Show’ Comedy Crew in U.S. Capitol from Jan. 6 Cases

Actor and comedian Robert Smigel performs as Triumph the Insult Comic Dog in the hallways outside the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol hearing in the Cannon House Office Building on June 16, 2022 in Washington, DC. Smigel is producing comic coverage of the hearings for the Stephen Colbert Show. The bipartisan committee, which has been gathering evidence for almost a year related to the January 6 attack at the U.S. Capitol, is presenting its findings in a series of televised hearings. On January 6, 2021, supporters of former President Donald Trump attacked the U.S. Capitol Building during an attempt to disrupt a congressional vote to confirm the electoral college win for President Joe Biden (Photo by Chip Somodevilla/Getty Images.)

Actor and comedian Robert Smigel performs as Triumph the Insult Comic Dog on June 16, 2022, in the hallways outside the House Select Committee to Investigate the January 6 Attack on the U.S. Capitol. Smigel was producing comic coverage of the hearings for the Stephen Colbert Show.

A crew connected to CBS’s “The Late Show with Stephen Colbert” was arrested on Thursday evening inside a House of Representatives office building, the U.S. Capitol Police said on Friday — touching off a firestorm of criticism from many conservative commentators and politicians.

The details are currently few.

The Capitol Police said its officers received a call around 8:30 p.m. on Thursday of “a disturbance in the Longworth House Office Building.”  That is a structure situated south of Independence Avenue and directly across the street from the domed Capitol itself.

“Responding officers observed seven individuals, unescorted and without Congressional ID, in a sixth-floor hallway,” the Capitol Police statement continued.  “The building was closed to visitors, and these individuals were determined to be a part of a group that had been directed by the USCP to leave the building earlier in the day.”

“They were charged with Unlawful Entry,” the Capitol Police statement continued.  “This is an active criminal investigation, and may result in additional criminal charges after consultation with the U.S. Attorney.”

It is unclear from the statement who called in the disturbance.

The New York Post said that the detainees were released from jail at some point Friday morning.

No publicly available criminal cases against any relevant parties have been filed as of Saturday evening, according to a Law&Crime review of federal court records in Washington, D.C.

A vice president of communications for CBS told NBC News that the arrestees were part of a production team for “Triumph the Insult Comic Dog.”  The team, according to the CBS spokesperson, had been on Capitol Hill on both Wednesday and Thursday.

“Their interviews at the Capitol were authorized and pre-arranged through Congressional aides of the members interviewed,” CBS’s Renata Luczak told NBC News via email. “After leaving the members’ office on their last interview of the day, the production team stayed to film stand-ups and other final comedy elements in the halls when they were detained by Capitol Police.”

Law professor and impeachment witness Jonathan Turley opined on Twitter that the incident was “obviously not a serious breach of security in terms of any threat” but that the authorities were nonetheless taking the matter seriously.

Turley, who is no stranger to controversial stances and takes, was the lone expert witness called by Republicans during the House phase of President Donald Trump’s first impeachment proceeding, Law&Crime has previously noted.

Law&Crime’s sister site Mediaite reported that FOX News’s Jesse Watters broke the story.  A FOX report claimed the crew was near the offices of House Minority Leader Kevin McCarthy (R-Calif.) and Rep. Jim Jordan (R-Ohio).  Watters also broadcast the names of nine individuals who he claimed were “on Capitol hill from the [Colbert] show.”  However, as noted above, the U.S. Capitol Police said a lesser number — “seven” people — were charged with alleged offenses.  Though Watters named nine names, the Capitol Police did not provide the names of the seven it said had been detained.

Watters further opined on the air that the incident was a “major breach of security” and that the crew was allegedly “wandering” the building.  He additionally asserted that the group was “banging on the doors of offices.”

Rep. Rodney Davis, an Illinois Republican, told Watters that additional information was clearly needed but that he wanted to know “what were they doing” and “why were they there.”

“We might have to have our own committee to investigate,” Watters said with reference to the Jan. 6 Committee, which earlier on Thursday had held a hearing.

In another flair of rhetorical hyperbole that did not accurately describe the charge cited by the Capitol Police, FOX opinion host Tucker Carlson dubiously claimed that “Colbert’s show on CBS committed insurrection at the United States Capitol.”

“It is likely that some members of Stephen Colbert’s team will be held in solitary confinement for a year and a half without being charged,” Carlson said before indicating that he needed to put the “joking aside.”  (Associates Press analyses have indicated that all of the January 6 defendants currently behind bars have, indeed, been charged; some are being held without bail, which is a different matter.  U.S. Supreme Court case law requires individuals detained without a warrant to promptly face a judge within 48 hours of an arrest.)

An official tweet by the Republicans on the House Judiciary Committee pressed this additional rhetoric:  “Adam Schiff’s cronies snuck in Stephen Colbert’s staff to the U.S. Capitol and facilitated unauthorized reconnaissance tours of GOP offices.”

In one of several voluminous Twitter threads about the incident, Prof. Turley noted that the CBS crew appears to have been detained using the same statute under which most Jan. 6 defendants have been charged. However, Turley said the factual underpinnings were legally “very different from breaking into the Capitol and rioting.”

Here, again, Turley drew a key distinction.

Elsewhere, while discussing the charge involved, Turley said that “the crew could argue that they had lawful authority from one of these members” of the House to be in the office building.

[Photo by Chip Somodevilla/Getty Images.]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.