AG Barr suggests charging protesters with sedition
Critics: Doing so would block protected speech
WASHINGTON – Attorney General William Barr urged federal prosecutors in a call last week to consider filing sedition charges against violent protesters, according to a person familiar with the call.
Barr’s comments, first reported by The Wall Street Journal, come as the Justice Department has charged hundreds of protesters amid months of nationwide civil unrest following the death of George Floyd, a Black man who died at the hands of Minneapolis police.
A sedition charge is highly unusual and is brought against people who conspire to overthrow the government or to levy war against the country.
To successfully prosecute someone for sedition, prosecutors must prove that there was a conspiracy against the government, and doing so is “virtually unheard of” in the United States, said Michael Gerhardt, a constitutional law professor at the University of North Carolina at Chapel Hill.
Charging someone with sedition also contradicts constitutional protections to protest, Gerhardt said.
“If it’s permissible for the attorney general of the United States or federal prosecutors to go after people because they are arguing against the government ... then what he and these prosecutors are doing is going after people for their political speech. That expression is protected,” he said.
The last time an administration aggressively brought sedition charges against a group of people was under President Woodrow Wilson in the midst of U.S. involvement in World War I, Gerhardt said. Congress passed the Sedition Act of 1918, which curtailed free speech rights of Americans who were against the war. Targeted for prosecution were pacifists, anarchists, socialists and others who opposed the war effort.
“I have never known of a sedition prosecution and I was a prosecutor with the DOJ ... for 34 years,” said Mary Lee Warren, who served for more than 30 years under five presidents, from Ronald Reagan to Barack Obama. “I think a responsible U.S. attorney would look at the facts ... and see if it applies to the elements of the offense of sedition as it’s laid out in the U.S. Constitution.”
Several other former longtime Justice officials who served under Republican and Democratic presidents also were troubled by Barr’s remarks.
Warren, who was deputy assistant attorney general for the Justice Department’s Criminal Division, said the recent comments were “a great change from the Attorney General Barr that I knew.”
Joseph Payne, a former Justice Department trial attorney who served for nearly 30 years, from Presidents Jimmy Carter to George H.W. Bush, called the suggestion of filing sedition charges “an overreach.”
“It’s a scary situation. I’m worried for my country,” he said. “I think every American should be very concerned.”
Barr also drew sharp condemnation Thursday for comparing lockdown orders during the coronavirus pandemic to slavery.
In remarks at Hillsdale College Wednesday night, Barr had called the lockdown orders the “greatest intrusion on civil liberties in American history” since slavery.
Rep. James Clyburn, D-S.C., the No. 3 House Democratic leader, told CNN that Barr’s remarks were “the most ridiculous, tone-deaf, God-awful things I’ve ever heard” because they wrongly equated human bondage with a measure aimed at saving lives.
In another development regarding protests, a military whistleblower says federal officials sought some unusual crowd control devices – including one that’s been called a “heat ray” – to deal with protesters outside the White House on the June day that law enforcement forcibly cleared Lafayette Square.
In written responses to questions from a House committee, National Guard Maj. Adam DeMarco said the Defense Department’s lead military police officer for the National Capital Region sent an email asking if the D.C. National Guard possessed a long-range acoustic device – used to transmit loud noises – or an “Active Denial System,” the socalled heat ray.
DeMarco said he responded that the Guard was not in possession of either device. National Public Radio and The Washington Post first reported DeMarco’s testimony.
Use of either the acoustic device or the Active Denial System would have been a significant escalation of crowd control for the Guard members, particularly since the Defense officials ordered that the Guard troops not be armed when they went into D.C.
Law enforcement personnel were armed. And although active-duty military troops were sent to the region, they remained at bases outside the District in case they were needed but never actually entered the District.
The Active Denial System was developed by the military nearly two decades ago, and was unveiled to the public around 2007. It’s not clear that it’s ever actually been used in combat, although there are reports it has deployed.