Unable to figure out how to prosecute Jan. 6 Capitol rioters, the U.S. Attorneys Office in D.C. is pulling out of mothballs a Civil War era sedition law, a law used in 1995 to prosecute al-Qaeda terrorist Sheikh Omar Abdel-Rahman and nine other conspirators. Convicted by U.S. Atty. Andrew McCarthy to gain convictions of Abdel-Rahman and conspirators, D.C. U.S. Atty. Michael Sherman said “all options are on the table, including dredging up the old sedition laws. Sherman must figure out first what happened Jan. 6, before he helps the vandals and trespasser get off. Calling the Capitol riot an insurrection or sedition, old terms harking back to Colonial or Civil War days, is preposterous, something that would hurt federal prosecutors seeking jail time for the hundreds of protesters that invaded the Capitol. Calling the rioters “insurgents” or “domestic terrorists” doesn’t make sense.
Insurrections without weapons are not insurrections but mob scenes or riots. While finding a few pipe bombs or Molotov Cocktails doesn’t qualify for the hundreds of tresspassers and vandals the entered the Capitol. No one had an automatic weapons with the intent to overthrowing the U.S. government. Yet in impeaching 74-year-old President Donald Trump, House Speaker Nancy Pelosi (D-Calif.) charged Trump with “incitement of insurrection,” not the more conventional charge, “inciting a riot.” Pelosi and her anti-Trump coterie in the House wanted the most severe charges imaginable, namely, that Trump organized a coup d’etat. Experienced prosecutors know if you overdo the charges you can get laughed out of court. Invoking a Civil War sedition law doesn’t accomplish anything for Sherman or any other prosecutors trying to deliver justice to the hundreds of Capitol lawbreakers.
Sherman isn’t thinking clearly when he sees the Jan. 6 Capitol Hill riot as an armed assault on the U.S. government. “Certainly if you have an organized armed assault on the Capitol, or any government installation, it’s absolutely a charge that can be brought,” said McCarthy, who won convictions of Abdel-Rahman and other conspirators. McCarthy didn’t suggest using the Civil War sedition law, know the bar was high in terms of proving guilt. Reaching too far can open the door to defense attorney looking to get Capitol Hill rioters charged reduced to public nuisance. “In our case, conspiracy was a lay-up because of the nature of the terrorist cell we were targeting. In this case, can they show conspiratorial activity or was it one of these things that spontaneously combusted, which makes conspiracy harder to prove,” McCarthy said. Reaching too far can get prosecutors burned.
McCarthy brings up the salient point that Jan. 6 was a riot with good old fashioned “group think,” when the crowd gets a mind of its own, inviting more and more people to join in. “Of course we should use it here. That what this is, seditious conspiracy,” said Fordham University law professor Karen Greenberg, urging Sherman to use the law designed to charge former Confederates with plotting to overthrow the U.S. government. Federal prosecutors would be laughed out of court calling face-painted, bearskin-hat-with horns QAnon conspiracy nut Jacob Anthony Chansley AKA Jake Angelli an armed insurrectionist. He spent most his time taking selfies, parading around with his American flag-draped spear. Greenberg really thinks a judge or jury would buy that the mentally challenged Angelli is an insurrectionist? Sedition laws were aimed at getting harsher sentences than malicious mischief.
What’s most ironic for liberal law professors is that Acting Atty. Gen. Jeffrey Rosen said “seditious conspiracy” should be applied to Black Lives Matter and Antifa rioters over the summer. Democrats want to throw the book a right-wing protesters but make excuses for left-wing activists rioting, seizing property, looting, arson and anarchy during the 2020 “summer of love” protests around the country. Special circumstance prosecutions raise the bar for prosecutors whether it’s “seditious conspiracy” or “domestic terrorism,” asking judges and juries to add time to sentences because of motives. “You would never be able to prove beyond a reasonable doubt that he [Trump] intended force to be used,” McCarthy said, eviscerating Pelosi’s impeachment case against Trump for ‘incitement of insurrection.” Trying to add special circumstances to ordinary crimes carry risks for prosecutors.
Invoking the Civil War “sedition conspiracy” practically guarantees that all Capitol lawbreakers will get off the hook, because there’s just no evidence that the lunatic siege on the Capitol was an organized coup d’etat. “I think people who work in the area of criminal procedure would say it [‘seditious conspiracy’ has a checkered history,” said University of Richmond law professor Carl Tobias. Tobias thinks using “seditious conspiracy” gives lawbreakers a break by trying to take away First Amendment rights. Pelosi got the fancy stuff going charging Trump with “incitement of insurrection,” when Trump neither incited a riot nor engaged in insurrection. Keeping it simple charging Captiol lawbreakers with breaking-and-entering, trespassing and vandalism gives a judge or jury the easiest way to get convictions. Pelosi guarantees in her hyperbolic charges another acquittal.
