The seditious conspiracy charges brought against Stewart Rhodes, founder of the Oath Keepers militia, along with 10 other defendants, opens a new and significant chapter in the events of January 6, 2021.
Many observers have noted the lack of “seditious conspiracy” charges related to the prosecution of those who participated in the Capitol riots. Those taking part in the riots were charged with minor crimes such as trespassing or other lower-level offences. Others have been charged with more serious crimes, such as obstructing a congressional process or bringing a gun into the US Capitol.
But the seditious conspiracy charges announced by the Justice Department on Jan. 13, 2022, raise the stakes and political temperature of the Jan. 6 probe. As a First Amendment scholar, I believe they may also raise serious concerns about the rights of others who later protest government actions.
The crime of seditious conspiracy is to join forces with others to overthrow the United States government.
Under federal law, individuals are guilty of seditious conspiracy if they conspire by force to “overthrow, suppress, or destroy the government.” This is the central or core offense.
However, the federal seditious conspiracy statute also prohibits the use of force to “prevent, impede, or delay the execution of any United States law” and the use of force to “seize, seize, or seize any United States property to own”. The crime carries a maximum penalty of 20 years in prison, fines, or both.
Insurgent conspiracy criminal cases are rare in the United States, but not unheard of. Indictments were successfully brought against Puerto Rican nationalists who stormed the Capitol in March 1954 and Islamist militants who planned to bomb several New York City landmarks in the early 1990s. However, jurors have also acquitted members of a neo-Nazi group charged with seditious conspiracy to conspire to overthrow the US government and assassinate federal officials.
Prosecutors may be reluctant to charge a seditious conspiracy for a number of reasons. Conspiracy allegations, involving plotting between two or more people to commit a crime, take considerable time and resources to develop and prosecute. Proving the elements of a seditious conspiracy can be difficult in fact and in law. Entering a restricted area or obstructing a congressional process are much easier to prove crimes than plans to overthrow or obstruct the US government.
Prosecutors may also be reluctant to press charges of seditious conspiracy because the charges appear to be politically motivated.
The First Amendment can also present a significant hurdle for prosecutors trying to prove a seditious conspiracy.
While it does not protect utterances calling for imminent lawless action, the First Amendment does protect utterances advocating the overthrow of the government in more abstract terms.
Thus, anti-government sentiment or general calls for “action” against alleged “tyrants” – or statements of that nature – do not reach the level of a seditious conspiracy. In order for prosecutors to convict people charged with seditious conspiracy, they must show that there were specific plans to prevent the law from being carried out or to seize state property.
For example, a 2010 indictment of seditious conspiracy against members of the Hutaree militia, allegedly plotting war against the government, was dismissed because the prosecution’s case was based essentially on hateful and offensive remarks by members of the Christian extremist group protected by the first Modification. The evidence showed no conspiracy to overthrow the government.
In the case of the Oath Keepers, the government must overcome similar First Amendment concerns.
In the case of Rhodes and his alleged co-conspirators, prosecutors can secure a conviction if they can prove, as the indictment alleges, that the militia went from protected speech to planning concrete actions — including “to stop the president’s lawful transfer of power.” ‘ – which are not protected by the First Amendment.
In a press release accompanying the conspiracy charges, the Justice Department alleged specific actions by the defendants, including planning to travel to Washington and bring weapons into the area to support the operation.
If any case fits the inflammatory conspiracy crime, maybe this is it.
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However, the application of the seditious conspiracy law in the Rhodes case could set a bad precedent as far as future protesters and dissidents are concerned. I see a danger that it could be used to support seditious conspiracy charges against other potentially non-violent groups.
The words of the seditious conspiracy law—to use force to “prevent, obstruct, or delay the execution of any United States law” or “to seize, seize, or possess any United States property”—may seem broad enough his institute certain types of civil disobedience, disruptive protests in the Capitol and elsewhere, and plan to resist mass arrests.
Such concerns may be another reason why prosecutors appeared reluctant to base the seditious conspiracy charges on the January 6 defendants.
History shows how broad anti-hate speech laws can quash protests and dissent. During World War I, pacifists and dissidents were often accused of sedition and seditious conspiracy because of their political advocacy and criticism of the government.
The First Amendment, which largely protects dissent, would not allow such prosecutions today. Modern interpretations of free speech place strict requirements on prosecutions for “inciting” violence. However, a successful indictment of seditious conspiracy in the Rhodes case may set a precedent for prosecuting protesters who commit common crimes, such as damaging a police car or occupying a federal building, or who engage in other acts of civil disobedience.
This danger is not purely speculative. In 2020, Trump’s Justice Department considered charging Black Lives Matter protesters with seditious conspiracy related to demonstrations in Washington, DC and Portland. The Justice Department eventually decided not to go that route. Certainly, a factual and other distinction can be made between these protests and the storming of the Capitol. But in the hands of an eager prosecutor, the potential for abuse is clear.
By Timothy Zick, Law Professor, William & Mary Law School
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