The storming of the United States Capitol was a historic event, occurring for the first time in more than 200 years.
And the event may soon be dealt with in a historic manner, with the US government bringing sedition charges against some of those who took part.
In an interview aired Sunday, U.S. Attorney Michael Sherwin told CBS’s “60 Minutes” that charges for some of the 400 arrested could soon include sedition, a charge rarely brought by the federal government.
“I personally believe the evidence is trending in that direction and most likely meets those elements,” Sherwin told Scott Pelley. “I believe the facts do support those charges,” he added. And I believe that as time goes on, more facts will support that, Scott. “
Sherwin also stated in the interview that about 10% of arrests involve “more complex conspiracy cases where we do have evidence — it’s in the public record — where individual militia groups from different facets… did have a plan.”
Sherwin did not specifically link that 10% of arrests to the idea of a sedition charge, but if even a small number were charged as such, it would represent one of the largest sedition cases in American history, if not the largest.
Sedition law has changed numerous times throughout American history, with the concept occasionally being used overzealously to target communists, war critics, and others whose alleged offences appear minor in retrospect.
According to federal law, a “seditious conspiracy” is defined as follows (key parts are highlighted):
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, 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.
People usually think of sedition as an attempt to overthrow the United States government, and some would certainly argue that storming the Capitol in an attempt to force Congress to overturn a democratic election qualifies as such. However, one can be charged if they simply conspire to use force to “prevent, hinder, or delay the execution of any law of the United States.” Aside from allegations of a “coup,” the Capitol riot appears to be an attempt – albeit a brief one – to postpone Congress’s implementation of the electoral college law.
Pelley told Sherwin that this was a “low bar.” Sherwin stated that he did not necessarily agree, but that sedition charges could be filed.
So, how uncommon would it be?
According to Jenny Carroll of the University of Alabama Law School, tracking the use of sedition charges in American history is difficult for a number of reasons. One reason is that people accused of sedition are frequently charged with seemingly minor offences that may amount to sedition but aren’t technically recorded as such, such as trespassing or resisting arrest, which are easier to prosecute. Another issue is that when state charges are involved, the federal government frequently defers to the states. A third issue is that there is considerable overlap between sedition, treason, and subversion, with the terms “sedition” or “seditious” not always being used.
It has been over a decade since the federal government filed sedition charges. The last time was in 2010, against members of the Hutaree Christian militia in Michigan, who were accused of plotting to overthrow the government. In 2012, a judge dismissed the charges, concluding that the government had failed to demonstrate that the group had firm plans to carry out attacks.
The last successful federal sedition prosecution occurred 26 years ago, when Omar Abdel Rahman (also known as the “Blind Sheikh”) and nine others were convicted of plotting to blow up the United Nations, the FBI building, and bridges and tunnels connecting New Jersey and New York as part of an effort to change US policy toward the Middle East.
Previously, in the early 1980s, more than a dozen Puerto Rican nationalists were convicted of sedition for their involvement in the Armed Forces of National Liberation (FALN), a group that claimed responsibility for bombings across the United States. President Bill Clinton granted clemency to fourteen of them in 1999 in exchange for their agreement to abstain from violence. Oscar Lopez Rivera, one of those who declined the offer, had his sentence commuted in 2017 by outgoing President Barack Obama.
More than a dozen self-proclaimed white supremacists were indicted on sedition charges in 1987 for an alleged campaign of violence perpetrated by the Aryan Nations, the Ku Klux Klan, and a group called The Order — the Fort Smith sedition trial. In 1988, they were acquitted.
Prior to this, there were several notable changes in sedition law, beginning with the Alien and Sedition Acts in the late 1700s. John Adams and the Federalists effectively made criticising Adams and other executive branch officials a crime under them. In 1800, Thomas Jefferson campaigned against the dubious law, allowing it to expire and pardoning everyone convicted under it.
During World War I, the 1918 Sedition Act made interfering with the war effort a crime, and it was used to target socialists, pacifists, and other antiwar activists. Former Socialist Party presidential candidate Eugene V. Debs was later arrested and convicted for an antiwar speech he gave, but his sentence was commuted in 1921, when Congress repealed the law.
The Alien Registration Act, also known as the “Smith Act,” was passed by Congress in 1940, making it a crime to advocate for the overthrow of the United States government. This was later applied to socialists, communists, and Nazi supporters. In 1957, the Supreme Court overturned Communist Party leaders’ convictions, ruling that those convicted must advocate actual action rather than abstract doctrine. Since then, the law has largely lain dormant.
The bar for sedition is higher these days, which is one of the reasons why prosecutions are fewer and more time elapses between them. And there will always be accusations that it is being used for political purposes, especially given how some Republicans, including Sen. Ron Johnson (R-Wis.), have downplayed or attempted to retcon the severity of the Jan. 6 Capitol riot.
However, in the case of the Capitol riot, we not only have evidence of a plot to attack the seat of government, but also extensive video footage of it. The big question will be how much of the planning involved an explicit attempt to overthrow the government or interfere with its enforcement of the law, as opposed to, say, simply sending a message and committing other crimes that fall short of sedition.
As Sherwin emphasised, bringing sedition charges is not something to be taken lightly, and if and when they are, it will send a strong message about the seriousness of the Capitol rioters’ actions.
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