You don't have to be sympathetic to the January 6 rioters and their tantrum over the outcome of the 2020 presidential election to have serious doubts about the U.S. government filing seditious conspiracy charges against the former leader of the Proud Boys and other members of the organization. While the law isn't the straight-up attack on free speech represented by past laws against sedition, it is an inherently political charge most often wielded by insecure officials against political adversaries. To the extent that the defendants did what prosecutors claim, the acts are already covered by laws that don't evoke the stink of show trials.
"A federal grand jury in the District of Columbia returned a superseding indictment today charging five members of the Proud Boys, including the group's former national chairman, with seditious conspiracy and other charges for their actions before and during the breach of the U.S. Capitol on Jan. 6, 2021," according to the U.S. Department of Justice. "As alleged in the indictment, from in or around December 2020, [Henry "Enrique"] Tarrio and his co-defendants, all of whom were leaders or members of the Ministry of Self Defense [chapter of the Proud Boys], conspired to prevent, hinder and delay the certification of the Electoral College vote, and to oppose by force the authority of the government of the United States. On Jan. 6, 2021, the defendants directed, mobilized and led members of the crowd onto the Capitol grounds and into the Capitol, leading to dismantling of metal barricades, destruction of property, breaching of the Capitol building, and assaults on law enforcement. During and after the attack, Tarrio and his co-defendants claimed credit for what had happened on social media and in an encrypted chat room."
The language of the announcement invokes that of the seditious conspiracy law, which addresses people who "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."
As the Justice Department notes, the defendants' alleged actions are already addressed by other laws regarding obstruction of official proceedings, interfering with police, civil disorder, destruction of government property, and assaulting officers. "All defendants now face a total of nine charges and Pezzola faces an additional robbery charge," the announcement adds. Seditious conspiracy is thrown in as a 20-years-in-prison cherry on top specifically referencing plans to interfere in the electoral vote tally.
"This is just a special case of the broader proposition that conspiring to commit a crime can itself be a crime," the UCLA School of Law's Eugene Volokh noted in fall 2020 before the January 6 riot but as Americans already accused one another of betraying the republic. "Likewise, you can be punished under the 'seditious conspiracy' statute for conspiring to illegally oppose the enforcement of the law."
But, if this is a cherry on top, it's a rotten cherry with inherently political overtones. That's why the law lay relatively unused and almost forgotten for decades, until it was invoked in 2020 by then-Attorney General William Barr as a weapon against left-wing rioters.
"In the call last week, Mr. Barr urged prosecutors to seek federal charges whenever possible," The Wall Street Journal reported at the time. "He listed a number of additional statutes they could potentially use, including one addressing conspiracies or plots to overthrow the government. Legal experts say the rarely used statute could be difficult to prove in court."
That's when Volokh clarified the term for readers and legal experts began pushing back on the idea.
"Sedition is, roughly speaking, the crime of either rebelling against the government or inciting other people to do so," Harvard Law School's Noah Feldman warned. "It's the sort of crime that weak governments enforce against their citizens when the government is facing an existential threat — or thinks it is."
Feldman went on to warn that the use of such charges against protesters, however violent, who were motivated by concerns over police brutality and racial disparities was an "outrageous attempt to politicize the criminal justice system."
George Washington University Law School's Jonathan Turley agreed with Feldman about the danger of politicizing the criminal justice system. He added that other laws already covered rioters' alleged acts.
"The Justice Department has already been hitting rioters hard with criminal charges that bring lengthy sentences," Turley commented. "The use of sedition seems virtually gratuitous given those options. These protests are a mix of violent and nonviolent actors. Those who act violently have been charged with an array of serious offenses from battery to rioting to arson to conspiracy. When presented with a mix of such actors, the government has long used restraint and relied on conventional charges to avoid injecting heavily laden notions of sedition into the debate."
Since 2020, the players have changed; Oath Keepers (charged with seditious conspiracy in January) and Proud Boys replace antifa as the targets of the federal government's ire. Now, as then, the defendants face a host of charges alleging acts including violence with seditious conspiracy a seemingly gratuitous addition to the mix. That partisan inversion of roles is nothing new; in fact, it's the norm as power changes hands.
"The history of sedition prosecutions is rife with injustices, and the precedent, once established, becomes a grotesque Frankenstein monster," historian David Beito observed in Reason after the Capitol riot. "In many cases, the same people demanding prosecutions end up, when political fashions change, facing prosecution for the same offense."
It's difficult to avoid the conclusion that Attorney General Merrick Garland and his staff are piling political charges on top of traditional criminal charges against people whose right-wing beliefs they despise just as his predecessor, Bill Barr, did against left-wingers. The political overtones that once caused prosecutors to shy from wielding the law may now be an irresistible temptation for government officials in a painfully divided country. Unfortunately, in succumbing to the temptation to pursue politicized charges, government officials risk turning defendants into political martyrs.
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