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Insurrection? Sedition? Incitement? A Legal Guide to the Capitol Riot

U.S. President Donald Trump speaks during a “Save America Rally” near the White House in Washington, D.C., U.S., on Wednesday, Jan. 6, 2021. Trump’s months-long effort to toss out the election results and extend his presidency will meet its formal end this week, but not without exposing political rifts in the Republican Party that have pitted future contenders for the White House against one another.
U.S. President Donald Trump speaks during a “Save America Rally” near the White House in Washington, D.C., U.S., on Wednesday, Jan. 6, 2021. Trump’s months-long effort to toss out the election results and extend his presidency will meet its formal end this week, but not without exposing political rifts in the Republican Party that have pitted future contenders for the White House against one another. (Bloomberg)

More than 850 people have been criminally charged in connection with the riot at the US Capitol on Jan. 6, 2021 by a mob of then-President Donald Trump’s supporters. Most are accused of conventional offenses such as trespassing and assault, while 16 members of two right-wing groups are facing a more exotic charge: seditious conspiracy. Just before he left office, Trump was impeached by the House of Representatives for incitement of insurrection but was acquitted of the charge by the Senate. The legal terminology around the unprecedented events that shocked Americans and the rest of the world requires some unpacking.

1. What is insurrection?

The term broadly means a revolt against an established government, usually employing violence. However, the federal statute against it -- which is rooted in the American Civil War of the 1860s and provides up to 10 years’ imprisonment for inciting, assisting or engaging in insurrection -- doesn’t define the term, so the parameters of the law are unclear. It’s been prosecuted rarely.

2. What is seditious conspiracy?

It’s the name given in federal law to the crime of sedition, which generally means the organized encouragement of rebellion or civil disorder against the authority of the state. In this case, the statute, also a reaction to the Civil War, spells out acts that constitute violations; that is, two or more people conspiring to overthrow the US government or to forcibly oppose its authority, interfere with the execution of any law, or seize any property of the US. The crime carries a maximum prison term of 20 years. Seditious conspiracy and insurrection are different from treason, which is aiding the enemies of one’s country. The government has filed only a handful of sedition cases in the last 80 years and not all have been successful; at least one failed because a judge dismissed the charges and another was rejected by a jury. Critics say the danger of such cases is that they may criminalize legitimate dissent.

3. What charges are rioters facing?

The Justice Department has charged people from all 50 states for storming the Capitol, where lawmakers were counting electoral votes from the November 2020 presidential race to certify Joe Biden as the winner. The crowd overran the Capitol police, injured an estimated 140 officers, and temporarily halted the vote count. 

• Seventeen months after the attack, about 246 rioters have pleaded guilty to misdemeanor charges such as illegal parading, while another 59 have admitted to felonies. About 70 -- fewer than 10% of the total charged -- have been sentenced to time behind bars for assaulting law enforcement officers and other crimes. Among those who’ve already been sentenced, Jacob Chansley -- the self-proclaimed “QAnon Shaman” who wore a coyote-skin headdress into the Senate chamber while carrying an American flag -- was ordered to serve 41 months in prison after pleading guilty to obstructing an official proceeding. Chansley vowed to appeal the sentence.

• In January 2021, three members of the far-right group Oath Keepers became the first to be charged with conspiring to forcibly storm the Capitol in order to prevent ratification of the election results. About four dozen more people have since been charged with conspiring to obstruct a congressional proceeding, obstruct law enforcement or injure officers, or some combination of those.

• This January, 11 leaders of the Oath Keepers were charged with seditious conspiracy, the most serious charges yet filed. In early June, the government added seditious conspiracy charges to cases already pending against five members of the Proud Boys, another extremist group.

4. What would prosecutors have to prove in the sedition cases?

Intent is important. It’s not enough for prosecutors to demonstrate that the accused advocated violence. Investigators have to show evidence of a deliberate conspiracy to use force to prevent the certification of Biden’s election. The indictment announced Jan. 13 describes how the Oath Keepers allegedly set up staging areas for equipment in Washington’s suburbs and organized training sessions to teach paramilitary combat tactics. The charging document also includes details of extensive electronic communications between the alleged co-conspirators and others before the assault, as well as excerpts of some of their encrypted messages during the riot. Oath Keepers founder Elmer Stewart Rhodes, referring to Biden as a “usurper,” at one point said there would be a “bloody and desperate fight,” according to the filing. Rhodes has publicly stated that he wasn’t present at the Capitol during the riot and that Oath Keepers who made trouble went rogue. 

5. What is incitement?

Legally, incitement is the act of urging others to commit a crime. The article of impeachment against Trump adopted by the House cited his comments before a crowd of supporters Jan. 6, when he urged them to march to the Capitol while saying, fallaciously, that he had won the presidential election and that “if you don’t fight like hell you’re not going to have a country anymore.” At the conclusion of Trump’s impeachment trial, which occurred after he’d already left office, the Senate voted 57–43 to convict him of inciting insurrection, falling 10 votes short of the two-thirds majority required by the Constitution, and Trump was therefore acquitted. 

6. Could Trump face criminal charges?

Inciting an insurrection or riot is a federal crime, but the Justice Department would have to charge him separately. That’s unlikely, according to Frederick Lawrence, a lecturer at the Georgetown University Law Center. Not only would prosecutors have to prove Trump intentionally whipped up his supporters, Lawrence said, but also that he intended for them to break into the Capitol, loot and cause bodily harm. A further complication is a 1969 Supreme Court precedent that shields inflammatory speech under the First Amendment unless it’s aimed at “imminent” lawless behavior. Apart from what Trump said in his speech, prosecutors could take an alternative path if they uncover evidence that the former president or his advisers were involved in planning the riot. Whether such conspiracy charges are viable would depend on the nature of the plotting and how close Trump and his inner circle was to it. “It would all turn on who was in the room and what they are prepared to testify to,” Lawrence said.

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©2022 Bloomberg L.P.

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