Department of Justice (DOJ) lawyers face risks and rewards if they move forward with sedition charges against members of the mob that overran the Capitol on Jan. 6.
Many legal experts say sedition charges are a natural fit given what happened at the Capitol that day.
Hundreds of former President Trump’s supporters overwhelmed Capitol Police and interfered with Congress’s lawful certification of President Biden’s Electoral College victory. Five people were killed, including a Capitol Police officer, with dozens more injured.
Lawmakers were evacuated from the House and Senate chambers. One member of the mob was shot and killed feet from the House floor, where lawmakers were taking cover.
But prosecutors lost the only sedition case the DOJ has brought in recent years, a 2010 case involving a Michigan-based militia.
And along with civil liberties concerns, such charges will likely tee up criticism that Biden’s Justice Department is doing so against supporters of Trump, who is flirting with another run for the White House in 2024.
Attorney General Merrick Garland has sought to make Justice’s independence a cornerstone of his tenure, something that could be endangered by a sedition case against Trump supporters.
Michael Sherwin, the former acting U.S. attorney for the District of Columbia, energized the debate with comments to “60 Minutes” on Sunday that some of the 300 people charged so far will likely face sedition counts.
“I personally believe the evidence is trending towards that and probably meets those elements,” he said.
The comments solicited irritation Tuesday from D.C. U.S. District Court Judge Amit Mehta, who said Sherwin’s comments could jeopardize the right to a fair trial.
The sedition statute covers conspiracy to overthrow the government, but also penalizes those who conspire to “prevent, hinder, or delay the execution of any law of the United States” or who use force to seize property of the government.
Michael McDaniel, director of the Homeland Law program at Western Michigan’s Cooley Law School, said sedition charges ran through his mind as he watched events unfold on Jan. 6.
“From the Election until Jan. 6 you’ve got this period of 60 days with lots of statements about ‘The president needs us in DC; the president wants us to stop the steal.’ The phrase refers directly to the joint session of Congress and the counting of electoral votes, and that’s delaying the execution of a law of the United States,” he said.
Sedition is a serious charge that carries a maximum 20 year jail sentence, while other charges that might be on the table carry as little as five. That might appeal to prosecutors.
“If you think a crime was particularly bad, you want to make sure that person gets what you feel to be an appropriate punishment and that also gives you leverage to get people to cooperate with the government,” said Mark Osler, a former federal prosecutor who now teaches at the University of St. Thomas School of Law.
“In a case like this, where you’re trying to see who did what and how much communication there was, they very much want people to flip and give them information,” Osler said.
Even if the charge is appropriate, it creates other headaches.
The government lost its most recent sedition case, brought in 2010 against the Hutaree militia, a so-called Christian patriot movement that conspired to attack law enforcement, a sign prosecutors will have to build a strong case for jurors.
That will mean taking care to document the conspiracy element — showing the planning and agreement that preceded the use of force.
“If you agree with somebody else that you’re going to use force to try and overthrow the government and prevent or delay the execution of any law of the United States or take any property of the United States and agree with anybody else to do that using force — that’s a violation of this law,” said David Sklansky, a professor at Stanford Law School.
Some planning — like those done on encrypted messaging applications — may be tough for prosecutors to track down.
But other elements of planning are more apparent from the ample footage of the event. Militia groups like the Oath Keepers had matching gear, used a walkie-talkie app to communicate, and moved “Ranger file” through the crowd, relying on a military formation to push their way into the building.
The risks of losing on a sedition charge, however, can be severe.
McDaniel warned such charges can strengthen groups, feeding into narratives that the government is attacking them.
“There are reasons for the government to be cautious,” he said. “If you’re not successful with a sedition charge then it’s like you’re encouraging extremist groups as opposed to deterring — with a conviction — others from joining such groups, which I think is one of the government goals.”
In the 2010 Michigan case, a judge wouldn’t side with the government, arguing prosecutors failed to show the militia’s members had concrete plans to carry out an attack.
But Sklansky is not sure that will be an issue.
“I think one difference between this case and that one is in this case there wasn’t just talk, there actually was a forceful invasion of the Capitol,” he said. “Sedition carries a lot of emotional weight and prosecutors are not going to want to charge it when it doesn’t seem appropriate partly because jurors are not going to want to convict someone of that offense if it seems excessive given what took place.
“But in this case it seems to me prosecutors may well conclude and jurors may well conclude that use of the sedition statute is not excessive because we are dealing with an effort to use force to prevent the elected legislature of the United States from ratifying the results of a lawful presidential election.”
Others, however, have suggested the DOJ approach the charges with caution.
“A politically-explosive charge like sedition is something that should be utilized against the insurrectionists only after extreme care and diligence,” Bradley Moss, a national security law expert, told The Hill by email. “Given the political sensitivities involved in bringing sedition charges against any of the former president’s supporters, as well as previous failed DOJ prosecutions for sedition, prosecutors will be focused on whether the entirety of evidence at their disposal leaves no possible doubt regarding the underlying intent and purpose of the criminal defendants. … The arrival of AG Garland hopefully means that the seriousness with which potential sedition charges are considered is done in a clearly objective and apolitical context.”
And while he thinks sedition could be appropriate, Sklansky warned the government should use such charges carefully, lest they be used to target other protests in the future.
“You don’t want to use this charge in ways that could wind up allowing a very heavy hammer to be brought against anyone who carries out political protests in ways that could be seen to be forcefully obstructing some law,” he said.
But Osler said the visibility of the attack to the general public will also help Garland and the DOJ push back against arguments that a sedition charge is too political or too aggressive.
“It was something the whole nation watched and rewatched and the objectivity of the DOJ is going to be viewed by people who saw with their own eyes what happened in real time,” he said. “So if their charges are too light and insignificant, it’s not going to match the threat that people perceived as people watched television on Jan. 6.”