There's no question that newly elected Montana Congressman Greg Gianforte assaulted Guardian newspaper reporter Ben Jacobs on election eve in Bozeman.

The question is: was that assault a misdemeanor, as cited by Gallatin County Sheriff Brian Gootkin, or does it actually rise to the level of a felony?

Montana Code Annotated describes assault in this way:

45-5-201. Assault. (1) A person commits the offense of assault if the person:

     (a) purposely or knowingly causes bodily injury to another;

     (b) negligently causes bodily injury to another with a weapon;

     (c) purposely or knowingly makes physical contact of an insulting or provoking nature with any individual; or

     (d) purposely or knowingly causes reasonable apprehension of bodily injury in another.

     (2) A person convicted of assault shall be fined not to exceed $500 or be imprisoned in the county jail for any term not to exceed 6 months, or both.

The code describes aggravated assault - a felony, this way.

45-5-202. Aggravated assault. (1) A person commits the offense of aggravated assault if the person purposely or knowingly causes serious bodily injury to another or purposely or knowingly, with the use of physical force or contact, causes reasonable apprehension of serious bodily injury or death in another.

     (2) A person convicted of aggravated assault shall be imprisoned in the state prison for a term not to exceed 20 years and may be fined not more than $50,000, except as provided in 46-18-219 and 46-18-222.

From the website :

Assault: Although not always classified as a felony, assault, if severe enough, can warrant a felony charge. Assault occurs when someone threatens physical violence, causing fear or harm. Usually, assault occurs with the use of a weapon, such as a gun or knife.

Battery: Battery, which usually is accompanied by assault, occurs when someone actually causes another person physical harm, usually with the use of a weapon or fists.

Gallatin County Attorney Marty Lambert has taken over investigation into the incident, which Ben Jacobs described this way. 'You just body-slammed me and broke my glasses'. In addition, witnesses from a Fox News team said Gianforte 'grabbed Jacobs by the neck and threw him to the floor and then punched him', while Gianforte's campaign chairman Shane Scanlon said it was Jacobs' grabbing of Gianforte's wrist that brought both men to the ground.

Lambert initially described the incident as a misdemeanor, when interviewed by KGVO News on Friday.

"My office is responsible for prosecuting misdemeanor crimes that are committed outside the incorporated cities, and that is what occurred in this case," Lambert said. "So, my office will be responsible for prosecuting the case. In cases like these you always have conflicting evidence, and so you bring your experience to bear and look at the rest of the evidence. You also take into account what motivations folks might have to shade their version of the story one way or the other. That's a very common occurrence in criminal cases and we'll be able to do that in this case, as well."

Lambert said his investigation will determine whether that original misdemeanor charge might or might not be upgraded to a felony.

"There are elements of the offenses that would need to be met," he said. "You would at least have to have probable cause to support those elements if you were to charge a felony. When I get the investigative file from the sheriff's office, I will review the case, and then I will be able to make a decision as to whether or not the charge that was filed by the sheriff should be amended or changed."

KGVO News spoke with Chief Deputy Missoula County Attorney Jason Marks about the difference between a misdemeanor and felony charge of assault.

"An aggravated assault is a serious bodily injury which means essentially the loss of a body part or protracted loss of use of a body part," Marks began. "It could also be reasonable apprehension of serious bodily injury or death, versus assault, which is just bodily injury or reasonable apprehension of just bodily injuries. An incident where an act causes pain or a bloody nose or whatever the case may have been, that's a pretty straightforward simple assault."

Lambert said the world-wide publicity that has resulted in the incident is not lost on his office.

"I've found in my experience that the more celebrity, the more media and the more attention that's paid to a case, the more important it is to take a step back and just review the case objectively and look at those sorts of details that we bring to bear when we review cases and do that in an objective fashion."

Lambert said his investigation will continue after the Memorial Day holiday weekend.

More From KMPT-AM