How Exactly Should We Hold The Insurrectionists Accountable?

Proud boys marching in front of the US Supreme Court the day of the Capitol insurrection in Washington DC – 6 January 2021. (Elvert Barnes from Silver Spring MD, USA, CC BY-SA 2.0 via Wikimedia Commons)

Mark Potok is an expert on the radical right who for 20 years was a senior official at the Southern Poverty Law Center. He is currently a Senior Fellow at the Centre for Analysis of the Radical Right.

As the dragnet that followed the January 6, 2021 Capitol insurrection enters its fourth month — with the total number of arrests reaching over 400 of the estimated 800 people who smashed their way into the building — prosecutors are mulling the use of their heaviest charge yet: Sedition, punishable by 20 years in prison.

The question now is: Should they?

Hundreds of those arrested face relatively minor charges, generally misdemeanors, while more than 100 have been charged with attacking police and about 150 with obstruction of Congress. Many also face weapons charges. And about three dozen members of three US-based right-wing extremist groups — the Oath Keepers, Proud Boys, and Three Percenters — have been charged with conspiracy.

But in late March 2021, Michael Sherman — who had just stepped down as acting District of Columbia U.S. Attorney and supervising prosecutor with regard to the Capitol insurrection — told a reporter that the evidence was “trending toward” the bringing of charges of seditious conspiracy, meaning a plot to use force to overthrow the government or obstruct its legitimate proceedings.

Those reports took on new weight as prosecution documents were filed around the same time, reflecting a growing body of evidence that suggested advance planning by members of the Oath Keepers and the Proud Boys.

That evidence included a December 19, 2020 Facebook message from Kelly Meggs, Florida leader of the Oath Keepers, telling fellow members that “I organized an alliance between Oath Keepers, Florida 3%ers, and Proud Boys.” As late as the day before the Capitol riot, Oath Keepers leader Stewart Rhodes sent an encrypted message to his followers telling them to be “prepared for violence.” During the actual riot, Rhodes and four of his followers exchanged 19 phone calls over a three-hour period — and prosecutors say that one 97-second call came just nine minutes before a “stack” of seven Oath Keepers clad in military apparel helped lead a forced entry through smashed doors into the east side of the Capitol.

Prosecutors called this and other investigative revelations — such as Rhodes’ organizing of armed “quick reaction forces” outside the capital in case of mass violence — “substantial evidence” of a conspiracy to halt confirmation of the election of President Joe Biden. Rhodes, for his part, denies any plan to break into the Capitol and says he went there, but did not enter, to rein in his followers.

Certainly, there appears to be a great deal of evidence of planning and coordination among some individuals and groups. An enormous amount of chatter about violence on January 6 in advance of the event was noted by private researchers and others. Substantial numbers of those who came were carrying weapons, and a number made efforts to hunt down Democratic politicians and other leaders.

So it may well seem that sedition fits the bill. But the truth is, for a variety of reasons, the history of sedition charges in America is fraught with dangers. In recent decades, it has also been marked by a series of failed prosecutions.

A case in point is the most recent case of seditious conspiracy brought by the government. In 2008, five members of the so-called Hutaree Militia were arrested in Michigan, Ohio, and Indiana, and accused of planning to assassinate a police officer and then murder other officers attending the funeral. In 2010, a federal judge dismissed all but a few weapons charges, ruling that the government had failed to prove that there was any real plot. At the time, Wayne State University law professor Peter J. Henning told The New York Times that “this was a fairly disorganized group that talked big but didn’t seem to be doing much.”

Another well-known seditious conspiracy case against right-wing extremists collapsed even more spectacularly. In 1988, in what became known as the Fort Smith Sedition Trial, 13 white supremacists — including many of the best-known leaders of the American radical right — went on trial. Nine were charged with sedition in connection with what the prosecution described as a plot to overthrow the government and establish a whites-only nation in the Pacific Northwest.

But the government relied on essentially thin evidence tying the men to the terrorist Order group, along with the bizarre testimony of two snitches, Glenn Miller and Jim Ellison. The all-white jury bought none of it. All the defendants were acquitted and, to add insult to injury, a juror later married a defendant.

Sedition charges have also been brought, historically, against disfavored defendants — anti-slavery activists, socialists, communists, and others. Historically, they often amounted to a criminalization of speech.

The 1798 Alien and Sedition Acts, for instance, were used by John Adams to jail newspaper editors and others who sided with Thomas Jefferson’s Democrat-Republicans. (Jefferson let the act expire when he won the presidency and commuted the sentences of all those convicted under it.) In 1832, Virginia outlawed “seditious speech” after the Nat Turner slave rebellion.

The Sedition Act of 1918 made it illegal to say anything “abusive” of the U.S. form of government. It was used to convict a socialist leader, Eugene Debs, after he gave a speech opposing conscription. And the 1940 Smith Act made it a crime to advocate the overthrow of the U.S. government. Many communists and others were sent to prison before the courts gutted the law by ruling that the “clear and present danger” standard be replaced by an “imminent lawless action” test.

Sedition laws in the United States have been used successfully on rare occasions, most recently in the prosecution of Omar Abdel Rahman, the “blind sheikh” involved in the 1993 attack on the World Trade Center. But as some legal experts have pointed out, sedition historically is about speech, not violence, and juries are increasingly reluctant to convict. The history of such charges is also marred by repeated use against dissidents, as opposed to criminals.

If the defendants in the 6 January insurrection cases appear guilty of conspiracy, let’s charge them with that. If there are other straight-ahead criminal infractions involved — assault, weapons, obstruction of Congress, or other violations — prosecutors should proceed.

But in the very important set of trials soon to come, let’s avoid the political and legal morass that may result from bringing sedition charges. At a time when the radical right is resurgent in ways not seen in decades, let’s not open ourselves up to the possibility of a disastrous failure of an overwrought prosecution. Creating a new set of right-wing martyrs would be the worst possible outcome.

This article is brought to you by the Centre for Analysis of the Radical Right (CARR). Through their research, CARR intends to lead discussions on the development of radical right extremism around the world.