The severity of the charges also undercuts efforts to downplay the events of that day; critics have long pointed to the lack of sedition charges or charges against people such as Rhodes as supposed proof that the insurrection wasn’t that bad — or wasn’t an insurrection at all.
It’s also a pretty historic day that was previewed about 10 months ago.
Appearing on “60 Minutes” back then, the former top prosecutor who handled the Capitol riot, Michael Sherwin, indicated that sedition charges could indeed be on the way.
“I personally believe the evidence is trending toward that, and probably meets those elements,” Sherwin said. He added: “I believe the facts do support those charges. And I think that, as we go forward, more facts will support that.”
Elsewhere in the interview, Sherwin said that about 10 percent of arrests involve “more complex conspiracy cases where we do have evidence — it’s in the public record — where individual militia groups from different facets … did have a plan.”
Sherwin didn’t connect that 10 percent of arrests specifically to the idea of sedition, but even the seditious conspiracy charges that were revealed Thursday are pretty historic for the modern era.
Sedition law has changed repeatedly throughout American history, with the idea occasionally being used overzealously to target communists, war critics and others whose alleged offenses, in retrospect, seem rather minor.
Here’s how “seditious conspiracy” is defined under federal law (key parts bolded):
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to 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 contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
People tend to think of sedition as an attempted overthrow of the U.S. government, and some would surely argue that storming the Capitol in an attempt to force Congress to reverse a democratic election would rise to that level. But one can also be charged if they conspire merely to use force to “prevent, hinder, or delay the execution of any law of the United States.” Allegations of an attempted “coup” aside, the Capitol riot seemed at the very least like an effort — and a momentarily successful one — to delay Congress’s execution of electoral college law.
So how rare is this?
Tracking use of sedition charges in American history is difficult for a few reasons, according to Jenny Carroll at the University of Alabama law school. One is that people accused of it are often charged for apparently lesser crimes that might amount to sedition but aren’t technically recorded as such — for example, trespassing or resisting arrest, which are easier to prosecute. Another is that, when state charges are involved, the federal government often lets states handle the cases. And a third is that there is plenty of overlap between sedition, treason and subversion, with the word “sedition” or “seditious” not always used.
It has been more than a decade since the federal government brought sedition charges. The last time was in 2010, against members of a Christian militia in Michigan called Hutaree, who were accused of plotting to rise up against the government. The judge dismissed the charges in 2012, finding that the government failed to prove that the group had firm plans to actually launch attacks.
The last successful federal sedition prosecution came 26 years ago, when Omar Abdel Rahman (also known as the “Blind Sheikh”) and nine others were convicted of plotting to blow up the United Nations, the FBI building, and bridges and tunnels between New Jersey and New York, as part of an effort to change U.S. policy toward the Middle East.
Before that, more than a dozen Puerto Rican nationalists were convicted in the early 1980s of sedition for their role in the Armed Forces of National Liberation (FALN), a group that claimed credit for bombings across the United States. Fourteen of them were granted clemency in 1999 by President Bill Clinton when they agreed to renounce violence. One who declined that offer, Oscar Lopez Rivera, had his sentence commuted in 2017 by outgoing President Barack Obama.
In 1987, more than a dozen self-proclaimed white supremacists were indicted on sedition charges for an alleged campaign of violence perpetrated by the Aryan Nations, the Ku Klux Klan and a group called the Order — a trial that became known as the Fort Smith sedition trial. They were acquitted in 1988.
Before this, sedition law underwent several notable changes, starting with the Alien and Sedition Acts in the late 1700s. Under them, John Adams and the Federalists effectively made it a crime to criticize Adams and other executive branch officials. Thomas Jefferson campaigned against the questionable law in 1800, allowed it to expire and pardoned everyone who had been convicted under it.
The 1918 Sedition Act made it a crime to interfere with the war effort during World War I and was used to target socialists, pacifists and other antiwar activists. Former Socialist Party presidential candidate Eugene V. Debs was later arrested and convicted over an antiwar speech he had delivered, but he had his sentence commuted in 1921, when the law was repealed by Congress.
Congress in 1940 passed the Alien Registration Act, also known as the “Smith Act,” which made it a crime to advocate the overthrow of the U.S. government. This was later used against socialists, communists and Nazi supporters. The Supreme Court in 1957 overturned the convictions of Communist Party leaders, ruling that those convicted must advocate actual action rather than abstract doctrine. The law has been mostly dormant since then.
The bar for sedition is higher these days, which is a big reason prosecutions have been fewer and further between. And there will always be allegations that it’s being used in a politically motivated way — particularly given how some Republicans have downplayed or attempted to retcon the severity of the Jan. 6 Capitol riot. Even a few hours before the announcement Thursday, a prominent Fox News analyst pointed to the lack of such charges as undercutting the idea that this was an insurrection.
As Sherwin emphasized 10 months ago, bringing sedition charges isn’t to be undertaken lightly. And now that they are, we can have a proper — and relatively rare — legal case to determine specifically whether Jan. 6 amounted, at least in some cases, to sedition.
This post, from last year, has been updated with Thursday’s charges.