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Did the Capitol Rioters Commit Sedition?

By Richard Dahl on January 07, 2021 | Last updated on January 08, 2021

In September, Attorney General William P. Barr reportedly told federal prosecutors that they should consider charging rioters in Portland and elsewhere with sedition.

It's probably fair to say that when most of us think of sedition, words like “conspiracy” or “government overthrow” come to mind, so Barr's suggestion sounded like a reach. Many legal experts thought so too, including Andrew Napolitano, a former judge and Fox News commentator, who called it “a bridge too far.”

But in the wake of the January 6 storming of the Capitol building by a mob of Trump supporters, the issue of sedition now seems far more timely and relevant.

Back in September, Deputy Attorney General Jeffrey Rosen wrote a memo explaining that use of the sedition statute is appropriate in instances such as “where a group has conspired to take a federal courthouse or other federal property by force.”

In another section of the memo, he makes it sound like the statute could be used in an even broader way: Charging protesters with sedition “does not (Rosen's own emphasis) require proof of a plot to overthrow the U.S. Government, despite what the name might suggest.” In other words, a mob could be guilty of sedition if they just decide, on the spur of the moment, to break into a federal building and cause damage.

The statute says that “seditious conspiracy” occurs when two or more people:

  • Conspire to overthrow, destroy, or wage war against the U.S. government
  • Use force to “prevent, hinder, or delay the execution of any law of the United States.”
  • “Seize, take, or possess” any federal property

'Textbook' Act of Sedition

Applying this statute to the January 6 event at the Capitol, law professor Devin Schindler of Western Michigan University's Cooley School of Law said it is a “textbook” act of sedition.

He told USA Today: “For at least some of these protesters, particularly the ones that broke into the Capitol, I think there's an extraordinarily strong case that they used force to delay, to hinder, the execution of our laws governing the election and how electoral votes are counted. It seems fairly clear to me, based on what we're seeing, that folks are in fact almost textbook violating this seditious conspiracy statute by using force to interfere with lawful government activity.”

The statute calls for fines and/or imprisonment of no more than 20 years. The legal consequences that the Trump mob will face are anybody's guess at this point. Sedition would be the most extreme charge. The website Law & Crime provides a thorough analysis of what the rioters may be facing, and suggests that a federal law prohibiting “unlawful activities” on U.S. Capitol grounds might be the most likely tool.

If there will be sedition charges they would be brought by law enforcement, not Congress. It would fall to the attorney general, almost certainly Merrick Garland, President-elect Biden's pick for that job.

Can Provocative Language Be Seditious?

So, what about the provocative language by Trump and others who are being criticized for encouraging the violence?

Several newspapers, including the Washington Post and the Philadelphia Inquirer, are applying the word “sedition” to those utterances. And San Jose Mayor Sam Liccardo, a former federal prosecutor, says that sedition charges should be brought against Trump and, in a Tweet, encouraged “our next US Attorney General” to do it.

Another former federal prosecutor, Michael Bromwich, issued a similar tweet: “More than enough evidence to prosecute Trump for treason, sedition, and incitement.”

And then there are the 139 members of Congress and eight senators who objected to the Electoral College votes. They, too, are not escaping the accusations.

The Washington Post refers to them as "The Sedition Caucus." Describing their actions to disregard the popular vote, The Atlantic said, "This is sedition, plain and simple.”

We are in the early stages of unraveling the events of January 6, and the events leading up to it. But we can be certain that we'll be hearing a lot more about sedition in the days ahead.

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