Proud Boys Found Guilty of Seditious Conspiracy
You remember the Proud Boys—the right-wing extremist group that our federal government has been prosecuting since their involvement in the January 6 Capitol attack, alongside the Oath Keepers.
Over a year ago, the Department of Justice brought federal charges against several members of the Proud Boys and the Oath Keepers for "seditious conspiracy"—a law so rarely used that no one had been convicted of it for almost thirty years.
That changed with the January 6 prosecutions. Four out of the five Proud Boys originally charged with seditious conspiracy were convicted last Thursday, the latest in a series of successful seditious conspiracy convictions brought by the United States government. And these are just part of the over 600 convictions arising from the January 6 attack—you can listen to our podcast roundup of these cases here.
A Rare Win for the Feds
Last week, a jury found that Ethan Nordean, Joseph Biggs, Zachary Rehl, and Enrique Tarrio had conspired during the Capitol riots to use "force to prevent, hinder, or delay the execution of" a federal law. These four were also convicted on five other charges, including obstructing an official proceeding. The fifth Proud Boy, Dominic Pezzola, was found not guilty of the seditious conspiracy charge. But he was convicted of obstructing an official proceeding, as well as several other claims.
Jurors heard around 50 days of testimony over the course of four months. They then needed about a week to deliberate to reach a verdict. The Proud Boys trial was the longest trial stemming from the January 6 Capitol attack.
At his post-conviction press conference, Attorney General Merrick Garland stated the Proud Boys participated in a "heinous attack that sought to disrupt a cornerstone of our democracy: the peaceful transfer of power to a newly elected government."
Patriots Stuck in an Alternate 1776
The government didn't have to piece together a paper trail. They were able to get it straight from the horse's mouth. Days before the January 6 attack, the Proud Boys circulated a document titled 1776 Returns.
1776 Returns outlines the Proud Boys' five-day plan of preparation. The document was divided into internally-distributed instructions to "Storm the Winter Palace" and externally-distributed instructions for a "Patriot Plan." During the five days, the Proud Boys would distribute the "Patriot Plan," bolster their ranks, and prepare appointments with representatives inside the building. On January 6, the group planned to infiltrate, execute, distract, occupy, and sit in. The January 6 attack was planned down to the minute. At 1:00 P.M. the "Patriots" would gather. At 1:22 P.M. they would check to ensure enough members were available. And at 1:30 P.M. they would "storm" the buildings.
1776 Returns further contains a map of several targeted buildings, including the U.S. Capitol and the Supreme Court. The Proud Boys intended to capture each listed building with teams made up of over 50 members each. These members included a "sleeper agent" who would set up a fake appointment and, once inside, allow in at least 50 other "Patriots."
The Proud Boys intended to fill buildings around the Capitol with such "Patriots" before making demands on the U.S. government. The ultimate goal was to demand a new election, "not a recount." This election would be done via paper ballots. There would be no mail-in or absentee ballots. Each voter would be required to show an ID. And the election would be monitored by the National Guard.
1776 Returns was sent to Proud Boys leader Enrique Tarrio a week before the January 6 attack. Prosecutors used the document to show that the Proud Boys members conspired to overthrow the United States government. Prosecutors also argued that the group engaged in a number of actions to support this plan, including
- obtaining paramilitary gear and supplies such as tactical vests, protective equipment, and radio equipment;
- dressing "incognito" to hide their Proud Boys affiliation;
- using programmable handheld radios and encrypted messaging applications;
- dismantling metal barricades around the Capitol;
- destroying property; and
- assaulting law enforcement officers.
But what exactly is "seditious conspiracy"? It's a little confusing, because words like "sedition" have been used in a number of different laws as far back as our country's founding, including in the Alien and Sedition Acts. Over time, various laws related to sedition have been passed, from the Sedition Act of 1798 to the Sedition Act of 1918. You can read about the history of this crime, notable cases, and related crimes such as treason on FindLaw's Learn About the Law section on Sedition.
Seditious conspiracy, our focus here, is a criminal claim found in a Civil War era statute. And it's difficult to prove. The government must show that the defendant conspired to do one of the following:
- overthrow, bring down, or destroy by force the U.S. government;
- go into war against the U.S. government;
- forcefully oppose the U.S. government's authority;
- use force to prevent, delay, or otherwise get in the way of a federal law being carried out; or
- forcefully and unlawfully taking any federal property.
Seditious conspiracy claims are rare because prosecutors cannot rely on "mere advocacy" to overthrow the government, i.e., someone simply calling others to act out. This conduct is protected by the First Amendment. There has to be more than just speech; there must be an overt act.
Until the January 6 attack, the last attempted seditious conspiracy charge was brought over 10 years ago. The government charged members of Hutaree, a Christian nationalist group, with this crime, but the judge eventually tossed the seditious conspiracy charges after finding that the government had not proved beyond a reasonable doubt that the group had taken a concrete act. No wonder the government doesn't usually bother with this charge.
Each of the five defendants was convicted of at least one charge of seditious conspiracy or obstruction of an official proceeding. Each of these charges carries a 20-year maximum sentence, although prosecutors may seek sentencing enhancements that could increase those maximum sentences.
Prosecutors in other January 6 criminal proceedings have sought such sentencing enhancements. For example, Guy Reffitt, who was also present at the Capitol riots, was similarly convicted of obstructing an official proceeding, in addition to other criminal charges. Prosecutors sought a terrorism enhancement for his sentence. Though the judge rejected the enhancement, he did sentence Reffitt to more than seven years in prison, the longest sentence for the Capitol riots crimes thus far.
Federal District Court Judge Kelly will ultimately determine the sentences for the convicted defendants. In making his determination, he will review sentencing guidelines and recommendations from the prosecution and defense. The convicted Proud Boys are expected to be sentenced later this summer.
- DOJ Targets Proud Boys, Expanding Its Sedition Probe (FindLaw's Law and Daily Life Blog)
- Controversial Hate Group Lawyer on the Run? (FindLaw's Practice of Law Blog)
- Trump Sued for Violation of the Ku Klux Klan Act (FindLaw's Courtside Blog)
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