Desperately Seeking Sedition
A Twitter account called #SeditionHunters has nearly 49,000 enthusiastic followers. The group describes itself loftily as a “global community of open-source intelligence investigators (OSINT)”—nice haughty touch with the acronym—“working together to assist the U.S. FBI and Washington D.C. Capitol Police in finding people who allegedly committed crimes in the January 6 capitol riots.” Its website includes a list of “#SeditionInsiders,” with images of 1,889 people observed inside the Capitol building on January 6, several hundred of whom have been arrested and charged, but not yet tried.
The trouble is, not one of those people has been charged with actual sedition, a major felony that carries up to 20 years in federal prison—which is what #SeditionHunters ostensibly is hunting.
Although several Capitol rioters have been indicted for assault and a handful face conspiracy charges (though, notably, not seditious conspiracy), the vast majority of the people arrested in the aftermath of the Capitol breach face misdemeanor counts such as trespassing, “entering and remaining in a restricted building,” and disorderly conduct. Should any be convicted, many (if Politico is to be believed) are unlikely to receive jail time.
The sleuths at #SeditionHunters scored a minor victory a few weeks ago when they posted a video purporting to show a January 6 defendant assaulting a Capitol police officer. Robert Reeder had agreed to plead guilty to a single count of “parading, demonstrating, or picketing in a Capitol Building,” and the government had asked for a sentence of two months. With the emergence of the video just hours before his sentencing, however, prosecutors delayed the hearing until October 8 and asked the judge to extend Reeder’s sentence to six months. The government’s case is hardly open and shut, though, and Reeder’s lawyer says parts of the video are exculpatory.
Suffice to say, “parading” and even “assault” aren’t sedition.
Right. What about higher-profile figures then?
Everyone remembers Jacob Chansley, a.k.a. Jake Angeli, the so-called Q Shaman who paraded through the Capitol tattooed and shirtless, wearing a horned headdress, his face painted red, white, and blue. Not surprisingly, Angeli is the face of the “Faces of Sedition” Facebook page.
Yet Angeli hasn’t been charged with sedition, either, let alone treason or other big-time crimes against the state that have animated the social media mob for months. Angeli did face a bevy of mostly misdemeanor charges, however, including “civil disorder,” “violent entry and disorderly conduct,” and “parading, demonstrating, or picketing in a Capitol Building.”
Angeli agreed last week to plead guilty to “obstructing an official proceeding,” a crime with an interesting legislative history. It, too, is a felony carrying a sentence of up to 20 years in a federal penitentiary. But the offense grew out of the Enron scandal 20 years ago, when fraudsters at the Texas-based energy firm and their accountants at the now-defunct Arthur Andersen LLP destroyed documents and intimidated witnesses in an effort to thwart Justice Department and congressional investigators. In short, federal prosecutors have applied a novel interpretation to a problematic law meant to curb white-collar financial crimes—an interpretation White House lawyers anticipated when George W. Bush signed the legislation in 2002. Today, however, the government asserts there are practically no limits on what the law covers. (Civil libertarians, assuming any are left, might want to keep an eye on this development and maybe speak up.)
Nevertheless, Angeli remains the gaudiest “Face of Sedition” on social media, where untold thousands are often wrong but never in doubt. Sedition “hunters” simply will have to take their victories where they find them.
Great Expectations
It wasn’t supposed to be this way. The sedition of January 6 was supposedly so obvious, a blind man could see it. Even before the Capitol “insurrectionists” had finished taking their selfies in the Rotunda and the tear gas had cleared, self-styled grown-ups in the room were convicting hundreds—thousands!—of Americans of sedition with little understanding of the law or its noxious history. A (very) small sampler:
CNN’s Jake Tapper: “We’re watching an attempt at sedition. We’re watching an attempt at a bloodless coup in the states, Trump supporters stopping the constitutional process, the counting of electors.”
The National Association of Manufacturers: “This is not law and order. This is chaos. It is mob rule. It is dangerous. This is sedition and should be treated as such.”
Beto O’Rourke (to Senator Ted Cruz): “It is your self serving [sic] attempt at sedition that has helped to inspire these terrorists and their attempted coup.” Cruz later replied to O’Rourke, “Stop using malicious rhetoric (such as false & reckless charges of ‘sedition’).”
Joe Biden: “This is not dissent, it’s disorder. It borders on sedition, and it must end. Now.” (At least Biden hedged with “borders on.”)
And that was just the beginning. In the days and weeks that followed, the press relished in sedition talk. The Washington Post (including its “conservative” columnist, Jennifer Rubin) referred to Republicans who favored delaying certification of the Electoral College vote as the “Sedition Caucus.” Others published “news analyses” of whether Donald Trump and his supporters could be charged with sedition. USA Today’s story, citing two law professors from Western Michigan University, contended the Capitol breach was an “almost textbook” case of sedition.
But sedition got really real when Michael Sherwin, the former acting U.S. attorney for Washington, D.C. who briefly led the January 6 investigation, appeared on “60 Minutes” in March. Sherwin told correspondent Scott Pelley that sedition charges for some of the 400 people in custody at the time were a real possibility.
“I personally believe the evidence is trending toward that, and probably meets those elements,” Sherwin said, adding: “I believe the facts do support those charges. And I think that, as we go forward, more facts will support that, Scott.”
So far, at least, those charges have not been forthcoming.
Deeds and Words
Fact is, there’s #Sedition and then there’s sedition. Here is the text of the section of the U.S. Code that defines “seditious conspiracy”:
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, 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.
University of Chicago Law Professor Geoffrey Stone, who practically wrote the book on sedition in the United States, provided a nuanced lawyer’s take to the left-wing Mother Jones magazine on the likelihood of sedition prosecutions for January 6 defendants:
If you protested outside the Capitol, within the appropriate bounds of free speech, you couldn’t be punished. The protesters who actually entered the Capitol can certainly be punished because what they did was not speech. So they don’t have any First Amendment defense if they actually violated the law by trespassing onto the Capitol in order to disrupt the ordinary workings of government. That goes beyond the First Amendment and could fairly be characterized as unlawful and seditious conduct.
Unlawful, no doubt. Seditious, though? Note that “could be” is not “should be” or necessarily “will be” in court.
For all the hype and enthusiasm at the prospect, sedition was always going to be a difficult charge for prosecutors to make, “textbook” or not. Even though some lawyers point to the part of the statute referring to the use of force “to prevent, hinder, or delay the execution of any law of the United States” (such as certifying the electoral vote), the conspiracy part is a high hurdle for prosecutors to clear. The last time the Justice Department successfully prosecuted a seditious conspiracy was nearly 30 years ago, in the case of “Blind Sheikh” Omar Abdel-Rahman, the Egyptian mastermind behind 1993 World Trade Center bombing.
That may be why the Justice Department has stuck primarily to charging January 6 defendants with misdemeanors—they’re easier offenses for extracting plea bargains.
And the Justice Department may have other practical reasons for holding off on pursuing the most serious of charges. We do not know—and may not know for quite some time—just how many confidential informants were among the crowd that day. It is not necessary to engage in any unfounded conspiracy theorizing to observe that several high-profile January 6 demonstrators have never been arrested—much less charged—with any crime.
Palmer Raids Redux?
Of course, it’s possible that federal prosecutors may yet bring charges of seditious conspiracy against people who remain unidentified and at large. But it’s difficult to overcome the sense that all of this sedition talk is part of the overwrought narrative portraying January 6 as “the worst attack on our democracy since the Civil War”—a narrative that proves once again certain Americans’ memories are pitifully short.
Obviously, the 9/11 terrorist attacks come to mind as much worse. Arguably, so does the assassination of John F. Kennedy. Remember Pearl Harbor?
As far as breaches of the Capitol building go, Puerto Rican nationalists machine-gunning the House floor was pretty bad, though nobody died, thank God. Same with the Weather Underground’s bombing of the Capitol in 1971. And the Marxist “Resistance Conspiracy” Capitol bombing in 1983. (By the way, none of those terrorists were charged with sedition or seditious conspiracy, either.)
The rush to punish sedition has had baleful consequences in America’s history. As Geoffrey Stone points out, sedition in the United States has mostly “involved seditious libel, when you can punish someone for speech that might have the effect of leading others to engage in illegal actions.”
The practical effect of seditious libel laws, however, has been to cudgel political dissent. The Sedition Act of 1798 led to the prosecution and imprisonment of about a dozen Americans merely for criticizing the administration of John Adams. The Sedition Act of 1918 (along with the 1917 Espionage Act) was even worse, as Woodrow Wilson’s administration led by Attorney General A. Mitchell Palmer sent hundreds of anti-war protesters to prison for up to 20 years.
Happily, the Supreme Court has narrowed the scope and reach of sedition laws so that overzealous prosecutors and politicians may no longer punish political speech so easily. Still, it’s fascinating to watch “good liberals” regress to the censorious mean so quickly. A century after the infamous Palmer Raids, it’s a lamentable fact that many millions of Americans would welcome their return—as long as they’re directed against their domestic political enemies. Pitifully short memories, indeed.
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