There must be accountability, and that cause would not be served by a raft of acquittals.
There must be accountability, and that cause would not be served by a raft of acquittals.
S uddenly there is enthusiasm over the prospect of prosecutions for seditious conspiracy, which was made a federal crime during the Civil War and is now codified by Section 2384 of the federal penal code. Last summer, when then-attorney general Bill Barr touted the statute as a potential vehicle for prosecuting violent rioters, the prospect was greeted with decidedly less enthusiasm.
As with insurrection, a concept whose mere utterance was grounds for ostracism a few months back (just ask Senator Tom Cotton), sedition is back in vogue now that the miscreants at issue are anathema to Democrats, rather than the party’s avatars of racial justice. Michael Sherwin, the acting U.S. attorney for the District of Columbia, has instructed prosecutors “to build sedition and conspiracy charges” against members of the mob that stormed the Capitol on January 6.
I know a little something about the statute, having orchestrated the last successful seditious-conspiracy prosecution by the Justice Department in a major case. That was against the jihadist cell of the so-called Blind Sheikh (Omar Abdel Rahman, now deceased), which carried out the 1993 World Trade Center bombing, was thwarted in a spring 1993 attempt to bomb several New York City landmarks, and otherwise plotted various strikes against what were perceived as symbols of American political and economic might, as well as kidnappings and assassinations of American (and some foreign) political figures.
Thankfully, none of these other plots came to fruition. They did, however, provide a bounty of evidence as to agreement, intent, and motive. Those are the three salient proof challenges for prosecutors in any seditious-conspiracy case. Key differences in the nature of the evidence available to meet those challenges in a terrorism case versus a case involving a sudden outbreak of violence explains why my case was a perfect Section 2384 fit, while today’s prosecutors are apt to face tougher sledding.
A couple of interesting things about seditious conspiracy.
First, the law is very rarely invoked. When it was originally enacted, its main targets were cabals of Confederate-sympathizers in Union states that were undermining the war effort, particularly by attacking or obstructing the transit of Union troops. There were just a few cases over the next century-plus. That is not because there was any legal infirmity in the law (as there is with, for example, the Logan Act). It is because, happily, Americans and others in our country do not often levy war against the United States or forcibly oppose our government. The statute was yanked out of mothballs to prosecute FALN terrorists, including those who attacked the Capitol in 1954, shooting and wounding several congressmen (none fatally). I think it would have been used against some of the Weather Underground terrorists in the 1970s, but most of those cases were abandoned because of illegal surveillance and other unconstitutional actions.
Second, the thing that raises people’s hackles about Section 2384 is the word “sedition.” The John Adams-era Alien and Sedition Acts mark a dark chapter for civil liberties in American history. When I first proposed using seditious conspiracy in our terrorism case, it understandably rubbed some people in the Justice Department the wrong way. That turned out to be a boon: Facing skepticism from some of the country’s best lawyers forced us to think our case through with extraordinary care.
Once you get beyond the title that Congress gave to Section 2384 — “Seditious conspiracy” — and read the words of the statute itself, the all-important defining of the crime, you discover that the word “sedition” does not appear.
The problem with the concept of sedition, for criminal-law purposes, is its vagueness. The word connotes internal opposition to the country, and especially to the federal government. Such opposition, however, is not necessarily violent. Therefore, its criminalization would be in serious tension with First Amendment rights to free speech, political dissent, association, and even freedom of conscience.
By contrast, the gravamen of a Section 2384 offense is force.
The statute criminalizes four different conspiratorial agreements: forcible overthrow of the U.S. government, levying war against the United States, forcibly hindering the government’s execution of the laws, and forcibly seizing government property. Though these are not common offenses historically, it is self-evident that they are serious crimes. Needless to say, the “war” the statute refers to is the real thing, not a metaphor. That’s rare. By comparison, you might think that forcibly resisting the government’s authority is not that uncommon — for example, resisting arrest, which happens often. But the statute does not apply unless the forcible opposition rises to the level of resisting the government qua government — i.e., the statute speaks not to the obstruction of an individual person’s arrest but to the rejection of the government’s legitimacy in making any lawful arrests, which is an iteration of overthrowing its authority.
As with any conspiracy offense, the rudiment of the crime is the agreement: the meeting of two or more minds on a criminal objective. In seditious conspiracy under Section 2384, that agreement must include the use of force, and it must be directed at the United States specifically.
That is why we had an easier time of it than I suspect Mr. Sherwin’s office will have — and I say that as someone who hopes prosecutors nail every murderer, rioter, and moronic hanger-on they can identify, regardless of whether they can make seditious-conspiracy charges stick.
Our case was more straightforward because our target was a terrorist cell. By nature, such groups are conspiratorial. They operate together in time and space. If investigators have the good fortune to infiltrate their operations with undercover agents and wiretaps, there is a good chance that the players will be identified. Once you know who they are, the actions they take to evade detection ironically become compelling evidence of guilt.
The glue that unites terrorist groups is what they hate, which often centrally includes America. They are also united by their commitment to use forcible power collectively, for the purpose of extorting our society and government to bend to their will. Consequently, if you have an investigative window into a terrorist cell operating inside the United States, you are sure to collect a trove of proof that they deem themselves at war with our country and are looking for opportunities to strike government installations. That is, you have the makings of a strong seditious-conspiracy case.
I have no insider knowledge of what investigators probing the siege at the Capitol are learning as they identify suspects, make arrests, and gather evidence. But based on what we know about the incident so far, it is more ad hoc than a terrorist plot, let alone orchestrated by a terrorist organization.
Many of the implicated people likely were drawn to Washington to hear President Trump’s incendiary speech, not to storm the halls of Congress. They went to the Capitol, at Trump’s urging, to protest and to put political pressure on Republicans to refuse to accept President-elect Biden’s election victory. If that had been all that happened, it would be free political speech — not criminal, even though wrongheaded and, on the president’s part as instigator, disgraceful.
I am not saying that no one in the rabble came ready to inflict serious damage and commit acts of violence. To the contrary, a not insignificant number of them plainly did. Big, disorganized throngs tend to draw agitators looking to stir up trouble. Still, it appears the lion’s share of the crowd that came to the Capitol got swept up in the craze of the moment. They entered the building, which they shouldn’t have done — and for which they can be prosecuted, albeit on less serious charges. These participants are different from the attackers. Their state of mind is not necessarily anti-American; they think of themselves as patriots who believe Trump’s demagogic claims of a stolen election; they want the result reversed, but they are not looking to overthrow the government. They do not see themselves as at war with the United States — they would tell you they love the United States.
A wide variety of criminal charges can and should be brought against the people who illegally entered our seat of government, endangered the lives of the vice president and lawmakers, and assaulted security personnel, killing one, in the chaos they caused. Some are complicit in murder, assaults on police, and property destruction; some are guilty of interfering with lawful government operations and trespassing (though it is the People’s House, the people are required to comply with lawful restrictions on entering it and regulations regarding conduct once inside).
It is likely to be very difficult, though, to prove that people on the Capitol grounds were in an organized conspiracy to use force against the United States and its government. If there are groups within the mob that did scheme a violent attack, and the evidence against them is convincing, it could well be worth it to charge them with seditious conspiracy. It would be a profound mistake, though, to bring weak cases if the point is to sustain a narrative of sedition and insurrection. The siege is a blight on our proud history of peaceful transitions from one president to the next. There must be accountability, and that cause would not be served by a raft of acquittals.