By Timothy Zick
The seditious conspiracy charges filed against Stewart Rhodes, founder of the Oath Keepers militia, along with 10 other defendants, opens a new and significant chapter in the events of Jan. 6, 2021.
Many observers have noted the absence of “seditious conspiracy” charges in connection with prosecutions of those who took part in the Capitol riot. Participants in the riot have been charged with minor crimes such as trespassing or other lower-level offenses. Others have been charged with more serious offenses, such as obstructing a congressional proceeding or bringing a weapon inside the U.S. Capitol.
But the seditious conspiracy charges announced on Jan. 13, 2022 by the Department of Justice raise the stakes and political temperature of the Jan. 6 investigation. As a First Amendment scholar, I believe they may also give rise to serious concerns about the rights of others protesting government actions down the road.
Prosecutions are rare
The crime of seditious conspiracy involves joining with others to overthrow the government of the United States.
Under federal law, persons are guilty of seditious conspiracy if they conspire “to overthrow, put down, or destroy the government” by force. That is the central or core offense.
However, the federal seditious conspiracy law also prohibits using force to “prevent, hinder, or delay the execution of any law of the United States” and using force to “seize, take, or possess any property of the United States.” The crime carries a maximum sentence of 20 years in prison, fines, or both.
Seditious conspiracy prosecutions are rare in the U.S., but not unheard of. Charges have been successfully brought against Puerto Rican nationalists who stormed the Capitol in March of 1954 and against Islamic militants who plotted to bomb several New York landmarks in the early 1990s. However, juries have also acquitted members of a neo-Nazi group charged with seditious conspiracy for conspiring to overthrow the U.S. government and assassinate federal officials.
Prosecutors may be reluctant to charge seditious conspiracy for several reasons. Conspiracy charges, which entail planning between two or more people to commit a crime, take lots of time and resources to develop and prosecute. Proving the elements of seditious conspiracy can be factually and legally difficult. Entering a restricted area or obstructing a congressional proceeding are far easier crimes to prove than plots to overthrow or hinder the U.S. government.
Prosecutors may also be reluctant to charge seditious conspiracy because the charges may appear to be politically motivated.
From speech to action
The First Amendment also may pose a significant hurdle for prosecutors trying to prove seditious conspiracy.
Although it does not protect speech that incites imminent lawless action, the First Amendment does protect speech that advocates overthrowing government in more abstract terms.
So anti-government sentiment or general calls to “action” against purported “tyrants” – or statements of that nature – don’t rise to the level of a seditious conspiracy. For prosecutors to convict those charged with seditious conspiracy, they must prove there were specific plans to hinder the execution of the law or seize government property.
For example, a 2010 seditious conspiracy charge brought against members of the Hutaree militia, which the government alleged planned to wage war against the government, was dismissed because the prosecution’s case rested substantially on hateful and offensive speech by members of the Christian extremist group that was protected by the First Amendment. The evidence did not demonstrate a plot to overthrow the government.
In the case of the Oath Keepers, the government will have to overcome similar First Amendment concerns.
In the case of Rhodes and his alleged co-conspirators, prosecutors may secure a conviction if they can prove, as is alleged in the indictment, that the militia moved from protected speech to planning specific actions – including “to stop the lawful transfer of presidential power” – that are not protected by the First Amendment.
In a press release accompanying the conspiracy charges, the Department of Justice alleged specific actions by the defendants, including planning to travel to Washington, and bringing weapons to the area in support of the operation.
If any case fits the seditious conspiracy crime, perhaps this is it.
Potential for abuse
However, use of the seditious conspiracy law in Rhodes’s case may 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 nonviolent, groups.
The words of the seditious conspiracy law – using force to “prevent, hinder, or delay the execution of any law of the United States” or to “seize, take, or possess any property of the United States” – may be broad enough to sweep in certain kinds of civil disobedience, disruptive protests at the Capitol and elsewhere, and plans to resist mass arrests.
Such concerns may be yet another reason prosecutors had seemingly been reluctant to rely on seditious conspiracy charges for the Jan. 6 defendants.
History demonstrates how broadly worded sedition laws can suppress protest and dissent. During the World War I, pacifists and dissidents were frequently charged with sedition and seditious conspiracy based on their political advocacy and criticism of government.
The First Amendment, which broadly protects dissent, would not permit such prosecutions today. Modern interpretations of freedom of speech impose stringent requirements in prosecutions for “inciting” violence. However, a successful prosecution for seditious conspiracy in the Rhodes case may create a precedent for going after demonstrators who commit ordinary 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 entirely speculative. In 2020, the Trump Justice Department considered charging Black Lives Matter protesters with seditious conspiracy in connection with demonstrations in Washington, D.C., and Portland. The Justice Department ultimately decided not to go down that road. To be sure, factual and other distinctions can be made between those protests and the storming of the Capitol. But in the hands of a zealous prosecutor, the potential for abuse is clear.
Timothy Zick is Professor of Law at William & Mary Law School.
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Ray W. says
I appreciate Mr. Zick’s analysis of current federal criminal statutes pertaining to the prosecution of sedition charges. But there have been significant changes in the practice of criminal law over the last 35 years, changes that have made it far easier for prosecutors to obtain convictions in a variety of situations.
I have commented on much of the following before. When I was in law school, during the late spring and early summer of the year the Detroit Tigers started their season with a 35-5 streak (1984), I assisted in the defense of a man accused of participating in a many tentacled conspiracy to distribute approximately 20,000 pounds of cannabis over a number of years and another approximately 220 pounds of cocaine that had been airdropped on one occasion onto a Florida landing strip. Eleven defendants and their attorneys were packed into a federal courtroom, with seats ringing the barrier between the court and the audience. The government had flipped the group’s bookkeeper, along with flipping several other unindicted co-conspirators, after seizing a detailed set of books during a search of a Florida home. Throughout the presentation of the government’s case-in-chief, one of the defense attorneys worked on crossword puzzles; he never cross-examined a government witness, he never raised objections to any of the submitted evidence. At the close of the government’s case-in-chief, the defense attorney waited his turn to challenge the sufficiency of the government’s evidence. All he argued was that the government had accused his client of conspiring to commit the distribution of both cannabis and cocaine by use of the term “and” inserted between to the two types of drugs listed in the language of the Indictment. Since the government had failed to link his client to the one-time cocaine airdrop, a “fatal variance” had occurred between the “allegata” and the “probata.” The trial judge spent considerable time reviewing his hand-written notes of each witness’ testimony, after which review he agreed with the defense attorney and dismissed the charge against his client; the attorney and his client then walked out of the courtroom. Had the federal prosecutor submitted the Indictment to the grand jury with “or” inserted between cannabis and cocaine, the attorney would not have had the “fatal variance” argument. In those days, judges held prosecutors more responsible for their allegations. After that experience, whenever I charged an individual with the crime of larceny of a firearm, for example, I worded my allegation as follows: “… to-wit: a Glock .40 caliber semi-automatic pistol bearing serial number ABCDEF1234567890, or a Glock pistol, or a handgun, or a firearm”, going from the specific to the general. That way, if any variance between the evidence and the more specific allegation occurred during trial, it would not likely rise to the level of a “fatal variance”, because I backed my most specific allegation with ever more general allegations.
Over the ensuing decades, the term “fatal variance” has largely disappeared from the courtroom. Now, if a prosecution alleges that a crime occurred on January 14th, but witnesses testify that the crime occurred on the 16th, the prosecutor can amend the charges after the defense challenges the variance between the allegata and the probata, and judges don’t even blink an eye. Dissenting appellate judges used to write of their lament that the law was evolving to “ease the path of prosecution”, but they don’t even write that anymore. Today’s judges are far less often required to perform the role of checking and balancing prosecutorial powers as they once were required to do.
I suspect that this concept of easing the path of prosecution gained strength after the Model Penal Code (MPC) was published in the early 1960’s. At that time, Florida and many other states did not have theft statutes. Instead, Florida had a set of codified common law specific intent crimes, such as larceny, conversion, embezzlement, fraud in the inducement, and on and on, which individually described particular crimes covering the gamut of human ways to unlawfully take property. After publication of the MPC, states all across the country began revamping their multitude of property statutes. Florida adopted the Anti-Theft Act in the mid-70’s, rolling all of the old specific intent common law crimes into one broadly worded theft statute. Of course, this eased the state’s path of prosecution.
At about the same time, Florida’s old robbery statute required the act of larceny, plus another act of taking by force (assault or battery, for example), but the specific mental intent to use force had to form and then occur either before or during the taking, not afterward. Each of the two required offenses that comprised the compound codified common law crime of robbery was a specific mental intent crime at common law. Based on language in the MPC, states began revamping their robbery statutes to include the language, “during the course of.” Today, a person can form the specific mental intent to steal a watch from Walmart, which could be a misdemeanor depending on value. He can return to the store’s parking lot two hours later while wearing the watch and struggle with a loss prevention officer, which is another exercise of forming specific mental intent to commit a misdemeanor (resisting a merchant, or assault, or battery). But such a person can also now be charged with robbery, even though the differing intents formed at far different times. At the time I started prosecuting merchant larcenists, if I wanted to also prosecute a person for resisting a merchant, the then-existing statutes contained language requiring me to successfully obtain a theft conviction before I could file a resisting a merchant charge. And today, if the loss prevention officer were to fall during the struggle with the thief over the previously stolen watch and hit his head on the parking lot pavement and die from complications of the resulting traumatic brain injury, the once-misdemeanant can now be subjected to the death penalty, even though he never intended to harm anyone at the time he formed the initial intent to steal two hours earlier. What would likely be a manslaughter charge without the two-hour old theft can now be a death sentence. This is another example of easing the path of prosecution.
Likewise, at common law, the common law misdemeanor offenses of trespassing and forceful entry had to occur together (stealthy entry was another act that qualified) to form a burglary charge, with the state having to prove that the accused had formed the specific mental intent to commit both crimes at roughly the same time. Based on language in the MPC, legislatures began inserting “enters or remains in” language into burglary statutes. Now, if a person is invited to a Super Bowl party and enters the home as a welcome guest, only to become inebriated over the course of hours and retaliate to an insult about his favorite team by striking another guest or the host, he can be charged with burglary, even though he never intended to commit any crime when he walked through the front door. Worse yet, if the victim were to fall and hit his head on the sharp edge of a table and die from complications of traumatic brain injury, the state can seek the death penalty under the felony murder statute. What was once a possible manslaughter charge punishable by 15 years is now a potential death sentence, without evidence that a person intended anyone to die. Another example of the easing of the path of prosecution.
Couple all of the above with the fact that most prosecutors these days have abandoned their role as gatekeepers of evidence, instead relying on judges to now perform that old prosecutorial duty for them. Who knows how these sedition Indictments will work out? But it is far easier for prosecutors to convict people today that it was in my earliest days in the practice of law.
In sum, even though the Supreme Courts of both the United States and Florida have long required the death penalty to be applied only to the “worst of the worst” crimes before permitting imposition of the death penalty, this consistent easing of the path of prosecution has led to an ever-broader definition of what constitutes the worst of the worst crimes. Today, in addition to the above-described commission of what were once misdemeanor specific intent offenses occurring long after the occurrence of other misdemeanor specific intent offenses leading to the possible imposition of the death penalty, the sale of certain listed drugs, which has long been described as a general intent crime, can also lead to the death penalty, something that was never envisioned by the courts 35 years ago. There is an element of the American psyche based on justice and another element based on vengeance. Easing the path to prosecution unbalances the scales of justice, resulting in prosecutors often becoming the righteous arm of the vengeful Americans among us.