Police in the nation’s capital say diplomatic immunity won’t keep them from investigating a “brutal attack” on “peaceful protesters” Tuesday by men believed to be bodyguards for visiting Turkish President Recep Erdogan.

Four international law experts, three of them former legal advisers at the State Department, tell U.S. News that if police identify the assailants, they may be able to make criminal charges stick, even if the men are on the Turkish government payroll.

Footage from the melee shows men mostly in suits, some reportedly armed, bypassing police officers separating pro- and anti-Erdogan activists. The men physically attack a group of protesters in Sheridan Circle near the Turkish ambassador's residence, repeatedly kicking some.

A police officer and 11 other people were injured, authorities say, including one critically. The protest group included Armenian and Kurdish activists opposed to Erdogan, two of whom reportedly were arrested in the immediate aftermath. One was charged with aggravated assault and the other with assaulting an officer.

Peter Newsham, chief of the Metropolitan Police Department in the nation’s capital, said at a press conference Wednesday that some of the men being armed made controlling the situation difficult, perhaps explaining why there were not more immediate arrests.

“We witnessed what appeared to be a brutal attack on peaceful protesters,” Newsham said, echoing condemnation from politicians and the State Department a day after Erdogan’s visit to the White House.

Newsham said police had high-quality footage of the incident and already had a good idea of who some of the alleged attackers were. He said the police department was in contact with the State Department about the case.

“We are going to pursue everything that’s within our legal power to hold the folks that were responsible accountable for their actions,” Newsham said.

“There could be a diplomatic immunity issue, but that won’t prevent us from doing what we need to do,” he said. “That’s not something that we tolerate here in Washington, D.C.”

Experts say diplomatic immunity isn’t a permission slip for Erdogan’s security detail – accused last year of "roughing up" protesters and journalists outside a Brookings Institution event in Washington – to assault activists, and that some of the men may enjoy no legal protection.

Stanford University law lecturer Allen Weiner says if he still was a State Department legal adviser he would recommend D.C. police pursue charges against the assailants if they were locally contracted security guards or men traveling with Erdogan for the visit.

Immunity provided to visiting heads of state and some members of their entourage “probably does not reach the security detail” traveling with a foreign leader, Weiner says.

Watch: Footage of the attack:



Though visiting leaders and some members of their group are protected by this customary immunity, workers at actual embassies and consulates are protected through the Vienna Convention on Diplomatic Relations, which provides absolute immunity to ambassadors and senior diplomats. Accredited technical and administrative staff are afforded more limited immunity for official acts.

“You just have to figure out which box they are in,” Weiner says about permanent embassy or consular staff, which can be done by reviewing State Department records to determine how such workers are classified.

U.S. Marines stationed at The Hague in the Netherlands, Weiner says, do have absolute immunity. And if the Turkish guards even have limited immunity, it’s a “tricky question” about whether the attack on protesters would be deemed part of their diplomatic role.

If any of the men enjoy diplomatic immunity, Weiner says, officials "could ask the Turkish government” to waive the immunity so the men could be prosecuted – though there’s no guarantee Turkey would agree, as the U.S. itself is reluctant to do the same.

Georgetown University law professor David Stewart, a former assistant legal adviser for diplomatic law and litigation in the State Department, also could imagine charges against Erdogan guards under certain circumstances.

“You don’t get immunity just because you claim it. You don’t get immunity just because you say, ‘I’m with the big guy.’ You don’t get immunity just because you say, ‘My passport says I’m important, I have a diplomatic passport,'” he says.

“You get immunity if you are accepted by the government in a certain status that entitles you to that immunity," he says, "and that’s typically a question of law – for example, under the Vienna Convention or our notion of international law.”

Stewart says “this isn’t just a question of abstract principles,” but rather a highly fact-specific question of law.

“The government is now trying to figure out, I’m sure, 'What are the factual circumstances here? Who gets what immunity?'” he says. “I can only imagine they’ve been doing it all day.”

Stewart agrees with Weiner that embassy staff likely are immune from prosecution if they have diplomatic accreditation with the State Department. But he says “it is possible” members of Erdogan’s traveling entourage would have customary immunity if their names were provided in advance to the State Department.

“Of course, you can imagine charges being filed,” Stewart says. “If these guys busted through the police line and beat up protesters, that’s a criminal offense. That’s an assault.”

“I would go so far as to say I would expect charges to be brought,” he adds. “Charges can be brought. The prosecutor would say, ‘We’re bringing these charges.’ The answer would be these guys are immune or they are not immune.”

George Washington University law professor Sean Murphy, another former State Department legal adviser, stresses in an email that "you don't get [diplomatic immunity] just because you are a foreign government official."

Murphy says "persons based at the Turkish Embassy who have been accredited have certain privileges and immunities under the [Vienna Convention], but persons traveling as part of a foreign government delegation do not, unless there was some special agreement struck between the U.S. and the foreign government in advance (which I doubt was done)."

Ruth Wedgwood, a professor of international law and diplomacy at Johns Hopkins University, says she could imagine a situation in which a diplomatically accredited guard stationed at the embassy could be prosecuted.

"If you have absolute immunity, your body gets to be immune until it's put on an airplane," she says.

But if you have immunity only for official acts, Wedgwood adds, “You can’t say, ‘I feel like busting your nose, that’s an official act, I'm doing it!’"