Jan. 6, 2021 Violence in the Capitol

The Justice Department Shouldn’t Open the Pandora’s Box of Seditious Conspiracy

By Joshua Braver
Thursday, May 6, 2021, 3:23 PM

The Justice Department’s pursuit of criminal charges against the perpetrators of the Jan. 6 mob invasion of the Capitol is gathering steam, and in late March, the former leading federal prosecutor in the complex investigation made a surprise appearance on “60 Minutes.” He told the interviewer that “evidence is trending towards” and “the facts do support the charge” of seditious conspiracy. The Justice Department hasn’t yet used the statute as a charge against anyone linked to the riot, but the prosecutor’s comments suggest that such a move may soon be on the horizon. 

Seditious conspiracy is an example of a “political crime,” a category reserved for crimes that threaten the very stability of the republic.  The category’s importance is not the severity of the punishment; other charges can usually be marshaled to achieve an identical sentence.  Charges for political crimes are symbolic: To shore up the state’s foundations, a political crime brands the criminals as outsiders of the political community whose movement has no role in civic dialogue.  A political crime then is potent medicine.  The challenge is to choose the narrowest political crime to limit side effects that can be fatal for democracy. 

Seditious conspiracy is the wrong political crime to condemn the leaders of the Jan. 6 insurrectionists. A sedition charge could open up a Pandora’s box that would criminalize vast swaths of more mundane activity such as certain forms of radical protest, resisting arrest, prison riots or robbing a federal bank.  To avoid this danger while still recognizing the uniquely heinous nature of the Capitol invasion, prosecutors should pursue the narrower and nearly novel political crime of “rebellion or insurrection.” Failing that and as a second best alternative, they should draw up the sedition charges very narrowly. 

 Seditious Conspiracy

Some of the most respected voices in the national security law community have called for sedition charges. Lawfare editor-in-chief Benjamin Wittes has argued that the invasion “doesn’t border on sedition. It is sedition.”  

Wittes isn’t wrong as a descriptive matter. The legal case for a seditious conspiracy charge is easy to make here. Indeed, it is too easy to make, because the statute is overly broad. It fittingly criminalizes attempts to “overthrow the government.” The problem is that it also has two additional and broad clauses: One criminalizes the use of “force to prevent, hinder, or delay the execution of any law[,]” and the other criminalizes the use of “force to seize, take, or possess any property of the United States.”  

These two clauses mean that the statute could stamp the stigma of a political crime on activities that do not rise to that high level, including activities we may consider praiseworthy.  To be sure, passive civil disobedience and free speech likely escape the statute’s reach as those activities do not involve the use of “force.” But an agreement by two persons to resist arrest by a federal officer, as is common in activist groups’ practice of “de-arresting” is likely covered under the seditious conspiracy statute because such resistance would “hinder or delay the execution of any law.” So too likely would the burning of a Washington, D.C., police officer’s car. And during the Black Lives Matter protests this summer, then-Attorney General William Barr voiced support for charging certain “rioters” at the protests using the seditious conspiracy statute. 

Some current and past protests might also fall under the statute’s ambit because they involved the use of “force to seize, take, or possess any property of the United States.” Take, for example, when the Women’s March celebrated that they shut down the Capitol building to protest Brett Kavanaugh’s confirmation as Supreme Court justice. Under the property clause of the statute, prosecutors could also pursue charges for other acts motivated by radical political ideology, such as the summer protests targeting Portland’s federal courthouse and Seattle’s “autonomous zone.”  Other ordinary crimes could also end up being designated as sedition such as prisoners taking over their federal jail or a robbery of Fort Knox. 

Current case law has set outer boundaries to the statute that has prevented some abusive prosecutions. For example, judges have dismissed seditious conspiracy prosecutions for strikes, for kidnapping of private civilians and for the planned assassination of local law enforcement. In these cases, the problem was that these heinous acts did involve not  the “exertion of force against those charged with the duty of executing the laws of the United States.” But in all the nightmare examples I’ve set out, the target was federal institutions or actors, so the nightmare examples are actually a better match for the text of the statute. 

To be sure, the seditious conspiracy statute has not yet been used to prosecute dissent or ordinary crime, and the sensibilities of the current administration and many judges and prosecutors err against its abuse. But many other statutes creating political crimes have been used to prosecute dissent in the past. Given this recent history and that the Trump administration flirted with reviving the use of the seditious conspiracy statute to target protesters over the summer, legitimizing this overly broad statute with new prosecutions may invite future abuse. 

Seditious conspiracy is one of many broad statutes in the criminal code.  A skeptic might note that fact and ask what difference does it make if seditious conspiracy is also on that list?  These statutes are prone to abuse and have long been the bane of proponents of civil liberties on both the left and the right of the political spectrum. The bulwarks against abuse of these statutes are especially unlikely to hold in moments of emergency or crisis, or with a populist president, exactly the moments when the seditious conspiracy charge might be abused.  And in comparison to more common broad statutes like “conspiracy,” there are far fewer norms against abuse of the seditious conspiracy statute given the relatively scant prosecutorial history behind the statute. Lastly, the stigma and strong message of a seditious conspiracy charge is one more reason to be especially wary of its abuse compared to other statutes.  Broad statutes may be problematic in general, but one should be particularly concerned about broadness with the rare and highly sensitive charge of seditious conspiracy. 

The problem is not just an overly broad statute, but the statute’s very symbolism: The purpose of a political crime is to send a message, and invoking the concept of sedition sends an undemocratic message to the broader public. In its classic form, sedition is the act of inciting revolt or violence against a duly constituted authority. That focus on incitement has often translated into a targeting of speech that criticizes the government. From 1796 to the mid-20th century, U.S. law used sedition to target political advocacy of pacifists, unionists and socialists. Free speech doctrine now protects against these kinds of prosecutions, and earlier sedition statutes have since been repealed. The current statute targets only “force” and is derived from a separate Civil War statute that has no connection with previous speech-based sedition laws. But the stigma and meaning of sedition as anti-government speech remains intact in dictionaries and in society’s political imagination. 

How can prosecutors adjust their approach to account for these drawbacks? One solution is for prosecutors to narrowly draw up the seditious conspiracy charges to focus only on the statute’s prohibition on “conspir[ing] to overthrow ... by force the government of the United States.” This careful tailoring of the indictment is a decent alternative. But this solution relies on the discretion of prosecutors and further legitimizes the obscure charge of seditious conspiracy for potentially broader use of the statute when a hard case arrives. And that broadening has been the trend so far. The indictments in the last seditious conspiracy case invoked the “execution of the law” clause, and both then-Attorney General Barr and the subsequent acting attorney general supported the statute’s use against Black Lives Matter protesters, presumably under the broader parts of the statute. Not much came of either move: A judge dismissed the seditious conspiracy case, and the Justice Department never charged any protesters with seditious conspiracy. The statute’s general revival dates primarily to the late 1980s and early 1990s, and this would be a good opportunity to step away from using the statute. 

What Is the Rebellion or Insurrection Statute? 

A political charge is appropriate, but sedition is the wrong one.  

The right political charge is, instead, “rebellion or insurrection,” which criminalizes “any rebellion or insurrection against the authority of the United States or the laws thereof.” The statute, 18 U.S.C. § 2383 provides:

Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.

Notice the high level of specificity: While seditious conspiracy targets the use of any kind of “force,” § 2383 takes aim at a much narrower range of conduct, specifically a “rebellion or insurrection.” Furthermore, while seditious conspiracy criminalizes force used to obstruct “the execution of any law” (emphasis added), § 2383 targets insurrections “against the laws[,]” which is used synonymously with an insurrection against the “authority of the United States.” It is true that under § 2383 the punishment is a maximum of 10 years, while seditious conspiracy permits the greater punishment of 20 years. However, prosecutors have plenty of options to tack on additional years to prison sentences, and the overall sentence can likely be the same regardless of whether the prosecutor chooses seditious conspiracy or insurrection. 

The crime of rebellion or insurrection was established in a July 1862 statute entitled the Second Confiscation Act, which was a precursor to the Emancipation Proclamation. Like today’s 18 U.S.C. § 2383, the Confiscation Act punished rebellion or insurrection with a maximum of 10 years and a fine. However, the act also included as punishment the “liberation of all his slaves” as part of a larger scheme of emancipation. After the Civil War and the passage of the 13 Amendment, the statute was updated to strip out slave liberation, leaving essentially the statute as it is today. 

What Does Case Law Have to Say About the Rebellion or Insurrection Statute?

Case law is sparse, but what exists does not stand in the way of a prosecution in this case. The most extensive discussion of the rebellion or insurrection charge comes from an 1863 circuit court case, United States v. Greathouse, in which Supreme Court Justice Stephen Johnson Field, sitting as a judge in circuit court, ruled that, if not creatively read, the criminalization of rebellion or insurrection violates the U.S. Constitution’s Treason Clause. Article III, Section 3, states that a treason statute can criminalize only the “levying of war against” the United States or “in “adhering to their enemies, giving them aid and comfort.” Under the Treason Clause, conviction requires the prosecution to obtain either “two witnesses to the overt act” or a “confession in open court.” Field argued that the rebellion or insurrection statute was an end run around the Constitution’s limits on treason because it criminalized the exact same act, specifically the act of “levying war.” In other words, the issue in the case was whether you could criminalize the exact same act as treason but call it rebellion or insurrection. Field said no. To rectify the constitutional error, Field read the statute creatively in order to save it: He claimed that it was actually a treason statute and that the prosecution could go forward because it met the constitutional requirements. 

While Greathouse may seem like a formidable obstacle to a prosecution for rebellion or insurrection, the subsequent case law on treason has swamped Field’s analysis. In the Supreme Court, the concern about an end run around treason was confronted again in two classic habeas cases: Ex Parte Quirin and Hamdi v. Rumsfeld. Neither case concerned the rebellion or insurrection statute directly, but the Supreme Court’s analysis in these cases informs how contemporary observers should think about Field’s opinion. In Quirin, decided in 1942 and in the midst of World War II, the court ruled that it was constitutional to try a U.S. citizen who aided Germany as an enemy combatant in a military commission rather than with a treason charge in an Article III federal court because “even when committed by a citizen, the offense [of being an unlawful combatant] is distinct from the crime of treason defined in Article III ... since the absence of uniform essential to one is irrelevant to the other.” As Carlton Larson, one of the foremost scholars of treason, has pointed out, since “it will almost always be the case that a person committing an act of treason ... will be doing so without a uniform,” the ruling effectively allows Congress or the Supreme Court to add any “trivial, additional element” to an offense as a means to circumvent the requirement that no person can be convicted of treason unless there is a confession in open court or the testimony of two witnesses to the overt act. In his dissent in Hamdi, Justice Antonin Scalia noted that Quirin was “not this Court’s finest hour.” But Larson argues that Hamdi nonetheless essentially affirmed this element of Quirin, by again allowing for a U.S. citizen, if properly designated as an enemy combatant, to be subject to military detainment rather than be tried in a civilian court for treason. These two cases signal that the Supreme Court would not prohibit laws, like the rebellion or insurrection statute, that criminalize behavior that is almost identical to treason. 

And Scalia’s dissent in Hamdi, joined by Justice John Paul Stevens, further clarifies that the Treason Clause stands as no bar to the charging of rebellion or insurrection. For the purpose of this post, what’s important to note is that Scalia’s primary concern was that an enemy combatant be given a civilian trial, not that the specific charge be treason. Scalia wrote that “[w]here the Government accuses a citizen of waging war against it, our constitutional tradition has been to prosecute him in federal court for treason or some other crime” (emphasis added). What are these other crimes? Scalia listed 11 other provisions in the criminal code that are similar to treason, including “§2383 (rebellion or insurrection).” Scalia did not carefully analyze whether each of these 11 treason-like crimes is an end run around the Constitution—and nor would any modern court. Indeed, Scalia did not hesitate to characterize these 11 other crimes in language that echoes almost exactly the Constitution’s formulation of treason: Scalia called these 11 treason-like crimes “other various acts of warmaking and adherence to the enemy.” In other words, although not the focus of the opinion, part of Scalia’s dissent approves of prosecutions under the rebellion or insurrection statute that I advocate reviving. Recall that the concern in Greathouse was that the rebellion or insurrection was a way to circumvent charging treason. If even Scalia’s dissent in Hamdi is open to charging rebellion or insurrection in the most paradigmatic case of treason, that of a citizen fighting on the battlefield for an enemy, then it is unlikely to be a problem in the context of the Jan. 6 mob invasion. 

Additionally, in 1999, the U.S. Court of Appeals for the Second Circuit effectively rejected constitutional concerns about end runs around treason in a case concerning the prosecution of Sheik Omar Abdel-Rahman, known as “the blind sheikh,” for participation in the 1993 World Trade Center bombing and related planned terrorist acts. Seditious conspiracy was the charge for the blind sheikh and his co-defendants. The court was skeptical that the seditious conspiracy statute violated the Constitution’s Treason Clause. It even expressed openness to the idea that the “name and associated stigma” associated with treason alone might be sufficient to distinguish it from seditious conspiracy. The court’s central holding, however, was that the crimes of seditious conspiracy and treason differ on an essential element. Namely, of the two, only treason has the requirement of “owing allegiance to the United States.” Although the Treason Clause does not mention or allude to allegiance, the court argued it was inherent to the concept of treason at the Founding and that the treason statute includes an allegiance clause. Although the Second Circuit case concerned seditious conspiracy, the same analysis would apply to the charge of rebellion or insurrection, which also lacks an allegiance requirement. Both the Second Circuit decision and Supreme Court case law severely undermine the Greathouse opinion and provide strong constitutional foundations to the charge of rebellion or insurrection.

Why do modern judges not share Field’s concerns in Greathouse about end runs around the Treason Clause? In the 19th century, whether one could charge treason or another crime often would have made a concrete and significant difference to the length of the prison sentence. In 1863, when Field wrote Greathouse, treason may have had a certain pride of place because there were fewer criminal statutes in general and fewer particularly involving treason-like acts that involved the use of force. Seditious conspiracy would not even be criminalized for another decade. The charge of a treason-like crime, such as rebellion or insurrection, may have felt genuinely novel. Most importantly, its 10-year penalty would make a substantial difference in the amount of time served. But in today’s world, with the proliferation of criminal statutes and a wider variety of political crimes, Field’s analysis is now obsolete. Standing by Greathouse would endanger the constitutionality of a wide variety of other treason-like statutes—at least 11, as Scalia noted—and its analysis would no longer make a significant difference to the sentencing. Today, prosecutors decide whether to charge treason or other political crimes not because of the severity of their penalty, but because of the symbolic message such charges carry and impart to the general public. 

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Current debates completely neglect the rebellion or insurrection charge because, unlike sedition, there have been no prosecutions for it since the Civil War. But there is also no precedent for the events of Jan. 6. A novel crime requires a novel prosecution. What made the breach of the Capitol singularly shocking was that it targeted the defining moment of U.S. democracy: the peaceful transfer of power between political parties. Other protests and riots, no matter their excesses, never crossed this nearly unprecedented threshold of attempting to overthrow the government.  

Only a political charge against the leaders of the Jan. 6 insurrection will send the message that the United States will not tolerate direct attempts to overturn the peaceful transfer of power. But the Justice Department should be careful not to choose a charge that is dangerously open ended. Restoring faith in democracy requires not only punishing leaders of the mob for insurrection but also ensuring that in the process the government does not open the door to branding as traitors those who engage in ordinary crimes or political activity.