Federal law defines clearly the crime of sedition — more precisely, “seditious conspiracy”— in 18 USC 2384:
“If two or more persons … 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.”
Many sensible Americans want to see on a Louisiana chain-gang the hundreds who attacked the Capitol on January 6 in support of Trump. They question why defendants being prosecuted for their participation in the assault on democracy have not been charged with sedition.
An initial answer relates to the tradition that legitimate western democracies (Israel excepted) do not use collective punishment to administer justice. Even Nazis were prosecuted based on their individual culpability and were granted due process.
The US Government remains true to that tradition. Its prosecution of January 6 rioters correctly distinguishes among the types of criminal acts committed by some 670 individuals.
Per Brandenburg v. Ohio (1969), the US Government must also distinguish between free speech and the specific crime of sedition. Extensive video evidence shows that hundreds of defendants did nothing more than trespass. They came, preened, babbled nonsense, took selfies, and left.
To advocate revolution (in Trumpian, “Stop the steal!”) is to express an opinion. It’s no crime, either, to watch and cheer the violence committed by others, and to have the same hope — a refusal by Congress to certify the election — as those with more deadly intentions (“Hang Pence!”).
It is the active planning by two or more people to use force — arrangements for logistics, the distribution of arms, and assaults on police in furtherance of the plan — that is prosecutable. Some January 6 defendants crossed the line and have been charged with felonies. The cases are ongoing.
Curious, though, is the absence of sedition charges for those defendants. The likely cause is federal prosecutors’ traditional reluctance in using Section 2384 for cases of politically motivated violence. The First Amendment reduces the odds for conviction. Prosecutors want cases they can win.
Worth noting is that Trump’s prosecutors, Barr and Rosen, had no such reluctance. They wanted Black Lives Matter protesters to be charged with sedition, which “does not require proof of a plot to overthrow the U.S. Government”.
The defendants themselves have offered proof that, on January 6, more than two people conspired to oppose the authority of the US Government, hindered or delayed the execution of a law, and seized federal property. They did so by force, which puts them squarely within the seditious conspiracy statute.
But Garland, true to his nature, has taken DOJ back to the traditional reluctance on sedition. It’s unclear why, especially after he swore that it is facts that will drive prosecution decisions. Is this yet another case where his hypersensitivity to not being seen as political has blinded him to the obvious?
Thought experiment: Would Barr, true to his nature, ever have invoked sedition for violence committed by Trump supporters? Unlikely. Not a chance. Barr’s objective was to protect his president; the administration of justice was coincidence. At least he never pretended to a virtue he doesn’t have.
