By John Mascolo, Esq. | Legally reviewed by John Mascolo, Esq. | Last reviewed November 24, 2023
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The United States became a nation in an act of rebellion against the British Crown. After winning the Revolutionary War, it passed its own law prohibiting rebellion or insurrection. Although the law is rarely invoked, it carries serious penalties. The following article provides an overview of the federal crime of rebellion and insurrection and how it differs from sedition and treason.
The prohibition on rebellion and insurrection arises in federal law at 18 U.S.C. Section 2383. The law prohibits incitement, assistance, and participation in a rebellion or insurrection against the authority of the United States and its laws. The punishment for this crime includes a fine, up to 10 years in federal prison, and ineligibility for federal public office.
Rebellion and insurrection refer specifically to acts of violence against the state or its officers. For example, Merriam-Webster defines these terms as follows:
This distinguishes the crime from sedition, which is the organized incitement to rebellion or civil disorder against the authority of the state. It also separates the crime from treason, which is the violation of allegiance owed to one's country by betrayal or acting to aid the country's enemies.
The crimes are easily confused, but if an offender is not acting on behalf of or giving aid to a foreign government, they are unlikely to be charged with treason. Staging non-violent protests and strikes might become seditious if they violate laws relating to these acts. They wouldn't be considered rebellion or insurrection since there is no call for violent acts, such as the destruction of government property or the assault of officers of the state.
The January 6, 2021 riots in Washington, D.C. may present a recent case of rebellion and insurrection. Some organizers of the events of that day made calls for protesters to rise up against the U.S. government and the Capitol police and force their way into the Capitol building.
Some called for violent acts against government officials, as in chants to hang Mike Pence, then the Vice President. As of 2023 federal prosecutors have not filed charges of rebellion and insurrection against the rioters.
Violence clearly happened at the Capitol. On January 6, 2021, Congress was in session to receive and count the vote of the Electoral College to certify the election of President-Elect Joe Biden. Former President Donald Trump called his supporters to a rally near the White House that day. He encouraged them to head to the Capitol and "fight like hell" to prevent the certification of the presidential election results, despite there being no evidence to indicate voting fraud.
Many supporters went to the Capitol and used violence against police officers and others to force their way inside and stop the proceedings. In the end, their actions delayed Congress from its work. Hours after the attack, Congress met and completed the certification process.
By November of 2023, federal prosecutors had filed charges against over 1,200 individuals. Crimes alleged include:
Rioters assaulted some 140 law enforcement officers at the U.S. Capitol on January 6. The government estimates the costs of the Capitol breach to be over $2.8 million.
The FBI's Washington Field Office investigated key leaders of the Capitol attack. Leaders of right-wing groups the Oath Keepers and the Proud Boys pled guilty or were convicted after a jury trial of seditious conspiracy and other charges. Documents uncovered by the FBI included a plan for storming federal buildings in Washington on January 6. Federal Judge Timothy Kelly sentenced the leader of the Proud Boys to 22 years in prison and the leader of the Oath Keepers to 18 years in prison.
Although there are frequent concerns about statements made by media figures, on social media, or even by members of the government itself, there are two aspects of the crime of insurrection and rebellion that tend to limit its use.
The first is that, since insurrection and rebellion are crimes, private citizens do not have standing to file charges against someone. Only the government itself, acting through the office of the attorney general, can bring federal criminal charges.
The second reason that rebellion and insurrection are not often charged is because of the strength of free speech protections under the First Amendment of the U.S. Constitution. The law tolerates a certain amount of exaggerated statements or claims in political speech, where there aren't accompanying overt illegal acts. The general language of the crime also lends itself to interpretation, making prosecution a riskier proposition.
Although rebellion and insurrection charges are rare, they should be taken very seriously, as should any federal criminal charges. Do you stand accused of a crime against the government? Do you just need to better understand this area of the law? Consider talking to a criminal defense attorney who can explain the law and defenses available in these cases.
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