Some at riot may face seditious conspiracy charges
Federal investigators have signaled some of the defendants in the attack on the U.S. Capitol could be charged with seditious conspiracy, a law enacted to target those who attacked the federal government during the Reconstruction era.
An indictment filed on Jan. 27 charges three of the riot suspects with conspiring to impede Congress’ certification of the Electoral College vote for the 2020 presidential election. The filing alleges those three are members of the Oath Keepers, “a loosely organized collection of militia who believe that the federal government has been co-opted by a shadowy conspiracy that is trying to strip Americans of their rights.”
Friday, prosecutors added six more suspected Oath Keepers as defendants in that conspiracy case. The indictment alleges that one of the suspects, Florida resident Kelly Meggs, 52, wrote Facebook posts referring to a tweet by thenPresident Donald Trump about the Jan. 6 protest in Washington, D.C.
“Trump said It’s gonna be wild !!!!!!! It’s gonna be wild !!!!!!! He wants us to make it WILD that’s what he’s saying,” Meggs wrote, according to the indictment. “He called us all to the Capitol and wants us to make it wild!!! Sir Yes Sir!!! Gentlemen we are heading to DC pack your s---!!”
Speaking generally on the day after the attack, Michael Sherwin, the acting U.S. attorney for the District of Columbia, said charging some riot suspects with seditious conspiracy is one option “on the table.”
But winning a seditious conspiracy case isn’t easy. Federal prosecutors have brought few cases to trial since the mid-1950s, and they’ve had mixed success.
In 1995, a New York City jury returned guilty verdicts in a seditious conspiracy case against Egyptian cleric Sheik Omar Abdel Rahman and nine others for plotting to bomb landmarks and tunnels. Two groups of Puerto Rican nationalists were convicted of seditious conspiracy in unrelated trials decades apart.
But in 1988 an Arkansas jury acquitted white supremacists of seditious conspiracy. Massachusetts jurors reached not guilty verdicts in 1989 against three defendants accused of conspiring against the U.S. government. And a judge granted acquittals in 2012 for members of an armed anti-law enforcement extremist group in Michigan.
Many attorneys say it would be appropriate to charge some of the Capitol rioters with seditious conspiracy or with violating another federal law that criminalizes insurrection and rebellion against the United States.
Those laws “seem tailor-made to cover the precise course of conduct engaged in by a number of the defendants who either have been or might still be charged in the attack on the Capitol,” said Laurence Tribe, a constitutional law expert at Harvard Law School.
The federal seditious conspiracy statute can be used to charge two or more people who conspire to “overthrow, put down, or to destroy by force the Government of the United States” or to “levy war against … oppose by force the authority thereof … or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States.”
A conviction can carry a 20-year prison sentence. The statute prohibiting rebellion or insurrection carries a 10-year sentence.
Most of the 198 people charged as of Friday by federal prosecutors in the District of Columbia have been accused of less serious crimes, such as disorderly conduct. Yet 17 have been charged with conspiracy to commit an offense against the United States, obstruction of an official proceeding, and entering and remaining in a restricted building.
Filings in some of those cases note that the attack forced a hasty adjournment of the House and Senate, which were meeting in joint session to formalize Joe Biden’s presidential victory over Donald Trump.
Others say attackers’ actions “did in fact impede and disrupt the orderly conduct of government business and essential functions” – language similar to the seditious conspiracy statute.
“I don’t see any reason why it wouldn’t be the right charge” for some of the suspects, said Andrew McCarthy, a former assistant U.S. attorney and current National Review columnist who was the lead prosecutor in the Rahman case.
The portion of the seditious conspiracy statute prohibiting an attack on government could apply to many people at the Capitol on Jan. 6, McCarthy said. But it may be tougher to prove a conspiracy. “Can you sort out the people who were the conspirators versus those who were just along for the ride?” McCarthy asked.
Phone calls and electronic communication among the rioters could be crucial to proving seditious conspiracy.
The indictment against the three suspected Oath Keepers says they used social media and messaging apps to recruit a large crowd for the Jan. 6 riot. That day, the suspects communicated via a “Stop the Steal J6” channel on a walkie-talkie app called Zello, the indictment says.
But Ronald Kuby, a civil rights attorney in New York City who was one of Rahman’s attorneys, warned that seditious conspiracy charges “can be based purely on speech, often political speech, that is constitutionally protected.”
“It should be used in the most judicious way, and perhaps not at all if other criminal statutes could be used,” he said.
“It should be a statute of last resort.” Some people in the crowd on Jan. 6 simply rallied in support of Trump’s claims that the election had been stolen. They didn’t enter the Capitol, clash with police or try to disrupt Congress.
Norm Olson, who co-founded the Michigan Militia in the mid-1990s, said he did not support the assault on the Capitol. (His group was not the one prosecuted for seditious conspiracy in 2012.) But Olson said he believes prosecutors would have a hard time proving seditious conspiracy.
“I don’t know what the government has, but what I saw there was a lot of people getting caught up in the moment,” Olson said. “I didn’t see an organized plot to overthrow the government.”
Prosecutors have alleged otherwise. A court filing alleges that Thomas Edward Caldwell, one of the indicted Oath Keepers, received a Facebook message during the riot that said lawmakers were “in the tunnels under capital seal them in . Turn on gas.”
Other court documents show that two suspects charged with conspiracy were seen that day with leaders of the Proud Boys, an extremist group with ties to white nationalism.
Tribe said it is difficult for outsiders, even legal experts, to forecast the appropriate charges “without knowing the detailed evidence that a thorough Justice Department investigation is likely to uncover.”