Carrying American flag at Capitol on Jan. 6 was a crime, DOJ Says 

William Pope of Topeka, Kansas, displays an American flag in Statuary Hall of the U.S. Capitol on Jan. 6, 2021. Images: U.S. Capitol Police 
William Pope of Topeka, Kansas, displays an American flag in Statuary Hall of the U.S. Capitol on Jan. 6, 2021. Images: U.S. Capitol Police 

By Joseph M. Hanneman 
Contributing Writer 

Federal prosecutors say carrying an American flag in the U.S. Capitol in support of a “particular viewpoint” is a criminal act punishable by up to six months in prison. 

In a filing in the criminal case against Jan. 6 defendant William Alexander Pope of Topeka, Kansas, the U.S. Department of Justice said carrying a flag in support of “free elections, fair elections and President Trump” constitutes a crime under Title 40 of the United States Code. 

“They now allege my crime to be carrying an American flag ‘in support or disapproval of a particular viewpoint,’” Pope posted on X, formerly known as Twitter. “Biden has made the American flag and wrongthink a crime!” 

In a court filing on May 15, Pope said: “I argue that carrying an American flag should not ever be criminal in the United States of America.” 

Pope posted a video on X from the U.S. House of Representatives, showing dozens of members waving small Ukraine flags after an April vote approving $60.8 billion in military aid for the besieged country. 

“Meanwhile in the Capitol,” he wrote in a caption above the video. 

“This accusation is unconstitutional on face value because it criminalizes the act of carrying the American flag,” Pope wrote in a May 15 response filed with U.S. District Judge Rudolph Contreras. 

Pope suggested political bias is behind the government’s charge. 

“The government supports President Biden using the American flag to call for ‘free and fair elections,’ but the Biden administration criminalizes the American flag being used by those who support an opposition candidate and call for free and fair elections,” he wrote. 

The DOJ filing has put a new spotlight on one of the most frequently charged crimes from Jan. 6: parading, demonstrating, or picketing in a Capitol building. 

The petty misdemeanor carries a maximum penalty of six months in prison. 

Many Jan. 6 plea agreements have been based on a single violation of the parading statute. 

The statute does not apply to members of Congress or their employees, or officers or employees of congressional committees. 

Under Title 40 U.S. Code §5104, a person may not “parade, stand or move in processions or assemblages in the grounds” or “display in the grounds a flag, banner or device designed or adapted to bring into public notice a party, organization, or movement.” 

Hundreds of flags were paraded about Capitol grounds on Jan. 6, including many dozens brought inside the Capitol by protesters. 

These included American flags, Gadsden’s “Don’t Tread on Me” flags that date to 1775, a few Confederate flags, a large selection of flags supporting then-President Donald Trump, and numerous flags disparaging incoming President Joe Biden. 

Pope carried his American flag as he approached the Senate Carriage Door around 2:17 p.m. on Jan. 6. 

After being shoved inside the building by a man who prosecutors have not identified, Pope walked through various sections of the Capitol. 

Carrying the Flag 

Security video showed Pope and his flag inside the Senate Wing Door, in Statuary Hall and the Great Rotunda. In Statuary Hall, he extended the flagpole and waved the flag before protesters streamed through the building. 

The government “admits they also intend to argue thoughts they believe I carried in my head through the Capitol were, ‘in support or disapproval of a particular viewpoint, action, public question, or cause,’” Pope said. 

“This is overly broad, vague, and un-American. Every single person who enters the Capitol carries thoughts in support or disapproval of various viewpoints and causes,” Pope wrote. “The Capitol was built for this very purpose. It was intended to be a meeting place to debate contrasting visions for America.” 

The only time that isn’t the case, Pope said, is upon a person’s death. 

“The only time American citizens enter the Capitol without supporting or disapproving viewpoints are when they are laid in state,” he wrote, “and even then, they are allowed the courtesy of having an American flag.” 

Pope said the government’s explanation of the parading charge came after the May 13 filing deadline for pretrial motions had passed. 

The DOJ “provided it too late for me to confront the accusations in pretrial motions,” Pope said. “Because of this delay, my Sixth Amendment right to confront accusations was also violated by the government.” 

Pope won a significant victory on May 13 when federal prosecutors moved to dismiss two of the eight charges against him. 

The DOJ asked Contreras to dismiss Count 5, “impeding ingress and egress in a restricted building or grounds,” and Count 7, “impeding passage through the Capitol grounds or buildings.” 

Pope faces a July 22 trial on the remaining six counts. However, he has asked Contreras to delay the trial based on exculpatory evidence he says was not provided by prosecutors. 

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