After the events at the US Capitol on January 6, dozens of those who invaded the Capitol have been arrested and charged, and dozens more will soon follow. Since the details of the invasion have been plastered across the headlines for the past week, there is no need to go into specifics here. The story is now turning to just how these individuals will be punished. So far, most charges involve illegally occupying US property, and weapons charges, though there is increasing momentum to go for a charge of sedition, at least against the ringleaders and primary instigators.
Sedition, or seditious conspiracy, is defined in US law thus: “If two or more persons … conspire to overthrow, put down, or to destroy by force the Government of the United States, … or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.” While this was not an attempt to overthrow the government, it certainly was a successful effort to “prevent, hinder, or delay” the certification of the 2020 presidential election, and it was also an effort to “seize, take, or possess” the US Capitol.
Michael Sherwin, the acting US attorney in Washington, has assigned a team to look into charges of seditious conspiracy. Politico quoted him saying, “…our office organized a strike force of very senior national security prosecutors and public corruption prosecutors. Their only marching orders from me are to build seditious and conspiracy charges related to the most heinous acts that occurred in the Capitol.” Sherwin described the deep investigation into the organization of the mob that attacked the Capitol. This only highlights the fact that there was a huge electronic trail pointing to this event already, and that despite this overwhelming evidence, security at the Capitol was light. Nevertheless, this wealth of evidence will now be plumbed in an effort to support the most serious charges available, including seditious conspiracy. Sherwin also hinted at far worse crimes than those that we now know of, claiming that when the full extent of the criminal activity is made public, “people are going to be shocked.”
There is resistance to the idea of pursuing seditious conspiracy, citing past difficulties securing convictions on such charges. In 2010 a violent religious group in Michigan, the Hutaree militia, plotted to kill a police officer, then bomb his funeral, in an attempt to spark an uprising. A judge dismissed sedition charges. While there is a much stronger case here, NPR quoted Andy Arena, an FBI special agent who led the Hutaree investigation, saying “It’s hard to prove.” Arena is optimistic, but warns that it is a more difficult charge than many others. The problem in the case of the Capitol invasion will be the extent to which it was a previously planned and organized attack, as opposed to a spontaneous riot. There is ample evidence that many, if perhaps a minority, prepared in advance to breach the Capitol.
Previous successful convictions of seditious conspiracy include sheikh Omar Abdel-Rahman, the mastermind of the 1993 World Trade Center bombing. It is not a charge that is often pursued, partly because it is so difficult, and partly because, fortunately, it is rare in US history.
In the past, sedition charges most often applied to speech, not action. Thus, for many, the idea of sedition conjures official attacks on First Amendment rights, efforts to suppress free speech by claiming that speech that undermines existing power structures is in fact inciting people to insurrection. It also has a long history of being used to block efforts to expand opportunities for marginalized communities. Sedition was used against abolitionists and free Blacks who sought to undermine slavery in the first half of the 19th century. With this difficult history in mind, some have argued that there are plenty of other laws and charges available to punish the Capitol invaders, and that avoiding sedition charges allows us to avoid conjuring up this painful history.
Whether or not sedition charges are ultimately brought, it is encouraging to see such a strong response to the violence at the Capitol. It is to be hoped that this will discourage a repeat event at the inauguration, scheduled for January 20. Such an attack could potentially be far worse than what happened at the Capitol. While security will be far greater at the inauguration, we can hope that many of those who may consider making the trip to Washington to disrupt the procedure will be scared off by the thought of decades of jail time.