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Should Capitol Rioters Be Charged With Seditious Conspiracy?

RACHEL MARTIN, HOST:

The impeachment resolution against President Trump charges him with, quote, inciting violence against the government of the United States. A House vote on that article could come as soon as tomorrow. As for the pro-Trump rioters who attacked the U.S. Capitol, they face a range of charges. Should something called seditious conspiracy be among them? NPR's Eric Westervelt is with us now. Good morning, Eric.

ERIC WESTERVELT, BYLINE: Good morning.

MARTIN: There's this big toolbox of federal charges that could be used in this situation. Sedition is one of the most serious. Federal code, Section 2384 defines it as a conspiracy to, quote, "overthrow, put down or destroy the government by force." What else should we know about this charge?

WESTERVELT: Well, beyond that language about a plot to overthrow the government, the code says, you know, it's seditious conspiracy if two or more persons use force to, quote, "prevent, hinder or delay the execution of any law of the U.S. or by force, seize, take or possess any property of the U.S." And rioters certainly used force to try to prevent, hinder or delay Congress from formalizing the Electoral College vote for Joe Biden as president. I mean, they were able to delay the Congress for hours - so clearly an attempt to halt what in saner times was seen as something of a formality, but is still, perhaps, the most important function Congress carries out.

MARTIN: Right. So do legal experts think the government would have a strong case if they brought sedition charges?

WESTERVELT: They do. But it's tough. And bigger questions are, you know, why go down that path? What are prosecutors really trying to achieve when there's other charges? I spoke with retired Brigadier General Michael McDaniel. He now teaches constitutional law at Western Michigan University.

MICHAEL MCDANIEL: I think that there has to be successful criminal prosecutions of these individuals that were involved in seditious conspiracy. Anybody who broke in with the intent to stop the vote, that's sedition. That is textbook sedition.

WESTERVELT: Seditious conspiracy charges have been used a handful of times in modern America with very mixed success. The statute worked against Islamist terrorists, including the sheikh who masterminded the 1993 World Trade Center bombing. But its most recent use in 2010 against the far-right Hutaree militia in Michigan did not go well. Members of the self-described Christian militia were accused of plotting to kill a police officer and bomb his funeral in hopes of sparking an anti-government uprising. A judge dismissed the sedition charges, ruling the government failed to prove the group planned to carry out specific attacks. Three members were convicted of lesser weapons charges and sentenced to time served. Andy Arena led that investigation when he was special agent in charge of the FBI's Detroit division. Today, some Capitol rioters, he says, may well meet the terms of the sedition statute. But he cautions it's a pretty high bar.

ANDREW ARENA: It's hard to prove. I'm not saying they can't do it here. I'm not saying they shouldn't charge it. It's just you've got to make sure you've got all your ducks in a row because it's tough.

WESTERVELT: Asked if he's considering sedition charges, the federal prosecutor in charge, acting U.S. attorney for the District of Columbia Michael Sherwin, tells NPR, yes. All charges are on the table as long as the evidence fits the criminal charge. And evidence of equipment and even loose organization may help show intent. U.S. Attorney Sherwin tells NPR that while it's not clear there was any overall command and control by rioters, there's certainly evidence of coordination.

MICHAEL SHERWIN: They look paramilitary almost, right? The uniform, you've got communication, those show indications of affiliation and a command and control. So I believe we are going to find those hallmarks. I can't say when. I think it could be weeks, if not months.

WESTERVELT: Those hallmarks are likely to prove key in any potential sedition case, says former FBI agent Arena, now director of the Detroit Crime Commission and a law professor. He says the fact that many rioters boasted on social media about their intent to stop the Electoral College count and set up a makeshift gallows and showed off gear could make any sedition case a little easier.

ARENA: These weren't the brightest guys, you know? I mean (laughter), you see it. I mean, guys are showing up there with rappelling equipment, zip ties. I mean, they're looking to handcuff people. I mean, why else are you doing that, right? So they weren't going there to exercise their First Amendment free speech, to protest. They were going there to get it on.

WESTERVELT: And some legal experts say if sedition is not among those charges, it risks further normalizing the kind of political violence we've seen in the Trump era from Charlottesville to the Capitol. Again, law professor Michael McDaniel at western Michigan.

MCDANIEL: This dark barrel of political violence has been opened. And once opened, you can't put the lid back on it easily. Any sort of symbolic or real gathering of government officials is going to be subjected to the possibility of political violence from these groups.

WESTERVELT: But others strongly caution against going down sedition road.

SHIRIN SINNAR: You know, I don't disagree that they should be prosecuted. But the most important efforts are political and not simply aggressively deploying criminal law.

WESTERVELT: Shirin Sinnar is a professor at Stanford Law School. She warns that seditious conspiracy charges could easily boomerang in the years ahead and end up being used to stifle dissent, especially by people of color and other historically marginalized groups.

SINNAR: We've got a long history of using sedition laws to suppress dissent. And although that's not what those who were invading the Capitol were doing - they were engaged in action, not just speech - we still need to be careful about expanding a framework that's been so connected to the suppression of ideas.

WESTERVELT: Following shocking crime, Sinnar says, America too often goes after low-hanging fruit and turns its gaze away from the much more powerful systems that enabled them. Eric Westervelt, NPR News. Transcript provided by NPR, Copyright NPR.