Two elements are indispensable to the crime of seditious conspiracy. First, there must be an agreement to use force, as opposed to protesting peacefully — even if rambunctiously. Second is the concept of levying war against the United States or opposing the lawful authority of the United States. Now that the Justice Department has been goaded into charging members of the Oath Keepers with seditious conspiracy for their participation in the Capitol riot, prosecutors may find that these elements pose insuperable challenges to their case.
The indictment filed Thursday necessitates revisiting this subject. It does not, however, change what I’ve already said about it, back in June: The actions of then-president Donald Trump before and during the riot undermine seditious-conspiracy charges.
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