1. To conspire to overthrow or destroy
by force the government of the United States or to level war against them;
2. To oppose by force the authority of
the United States government; to prevent, hinder, or delay by force the
execution of any law of the United States; or
3. To
take, seize, or possess by force any property of the United States contrary to
the authority thereof.
“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.”
The phrase “delay the execution of the law” is key for many of the protesters, particularly those who broke into the House chamber.
There is an extraordinarily strong case that they used force to delay, to hinder, the execution of our laws governing the election and how electoral votes are counted.
That is the textbook definition
of sedition: “Using
force to interfere with lawful government activity.”
Update
here from the Tampa Bay Times with this headline:
“Could the January 6
rioters be charged with sedition?”
In recent years, it’s been rare to see prosecutors file
sedition charges. But there are signs that participants in the January 6
Capitol riot could face such charges in the coming months.
Michael R. Sherwin, the federal prosecutor who until recently
led the DOJ’s investigation into the storming of the Capitol on January 6, told
CBS in a 60
Minutes interview (March 21) that some of the participants could soon
face sedition-related charges, adding: “I personally believe the evidence is
trending toward that, and probably meets those elements. I believe the facts do
support those charges. And I think that, as we go forward, more facts will
support that.”
Other legal experts told PolitiFact they generally agreed
with Sherwin’s assessment that a sedition prosecution could be appropriate for
the attack on the Capitol, given what was happening in the building that day,
and the trail of evidence the participants left behind.
What is Sedition?
Sedition broadly refers to anti-government conduct.
It’s important to recognize that there are two major varieties,
which are often confused:
The first one: Involves anti-government speech which is
likely not applicable in this case.
The second one: Involves anti-government acts, rather than
just speech. Prosecutions of this type are most rare historically, but this is
the category that would most likely apply to the events of January 6.
Eugene Volokh, a law professor at UC-Los Angeles says: “The
most famous use of ‘sedition’ has been in statutes such as the Sedition Act of
1798, which expressly covered anti-government speech, building on the
common-law offense of ‘seditious libel.’ The current meaning, though, has to do
with seditious conspiracy.”
A closer look at each type.
Seditious Libel:
This is the first and most-famous example of a law
criminalizing seditious libel – the Sedition
Act of 1798, which permitted the deportation, fine, or imprisonment of
anyone deemed a threat or publishing “false, scandalous, or malicious writing against
the government of the United States.”
The press was highly partisan and often vicious at the time,
and supporters of the law were open about their distaste for such political
commentary. This law proved unpopular, and it helped lead to the defeat of
President John Adams in 1800. Under his successor, Thomas Jefferson, the law
expired and was not renewed.
The Sedition
Act of 1918 was enacted during World War I and made it a crime to
write or publish “any disloyal, profane, scurrilous, or abusive language about
the government or the war effort.”
Impact: Political dissenters such as Eugene Debs, a
leading socialist, went to prison for speaking out against the war, and
prosecutions such as his worried civil libertarians.
The law was upheld as constitutional, but it was
repealed in 1921.
Portions of a related law, the
Espionage Act of 1917, live on, although elements of the law have been
curtailed by the courts.
Geoffrey R. Stone, a University of Chicago law professor and
author of “Perilous Times: Free Speech in Wartime from the Sedition Act of 1798
to the War on Terrorism” says: “For a long time, the U.S. did prosecute people
under the Espionage or Sedition acts for seditious libel and gave relatively
little protection to people for speech that had a tendency to cause others to
commit unlawful conduct. This began to change in the late 1950s, culminating in
the 1969 Supreme Court decision in Brandenburg vs. Ohio, which set a high
bar for conviction: The potential unlawful conduct resulting from the speech
needed to be imminent, likely, and intended by the speaker. Today, it would be
very difficult to prosecute a case of seditious libel.”
Seditious Conspiracy:
The kind of sedition that could be an issue in the January 6 legal fallout involves acts, not just speech. Under current federal law, a seditious conspiracy is defined as two or more persons conspiring to do one of two things by force.
* One is to overthrow the Government of the United States.
** The other is “to prevent, hinder, or delay the execution of any law of the United States.”
The law comes with a fine or imprisonment up to 20 years, or
both.
Experts said a prosecution for conspiring to overthrow the
U.S. government would be plausible, but challenging.
However, there’s another provision of the law available to prosecutors — conspiring to interfere with the execution of a law — that would be an easier vehicle for January 6-related prosecutions.
That is
because the rioters who entered the Capitol were there as lawmakers were
carrying out their constitutional duty to officially count the EC votes for president
as the final constitutional step to declaring a winner of the 2020 general
election for president.
Rodney A. Smolla, dean of Widener University’s Delaware Law
School says about that: “I believe there will be strong, prosecutable cases
under the federal seditious conspiracy statute.”
Added by James Robenalt, a lawyer with an expertise in
political crises who said: “The rioters clearly wanted to shut down by force
the execution of the law then being voted upon in Congress. The law doesn’t get
much more squarely on point.”
To make a conspiracy case, prosecutors would have to prove
intent and the existence of a concrete agreement among the participants. This
is always a challenge for prosecutors, experts said, but in this case, they may
have an advantage. Why?
Carlton Larson, a law professor at the University of
California-Davis said: “Some of the rioters were members of specific
anti-government groups or militias. Many participants in the storming of the
Capitol left a documentary record on email, social media, or videos which would
provide clear evidence of an agreement.”
Timothy Zick, a law professor at the College of William & Mary said: “For their part, the defendants in a seditious conspiracy case are likely to raise First Amendment claims, and argue they are being prosecuted for protected activities: advocating overthrow of government in the abstract, or engaging in political protest.”
Experts said that if a tangible agreement is proven, a First Amendment defense would likely be weak. Stone for example said: “Conspiracy is not speech. If you agree to rob a bank with someone else, you don’t get First Amendment protection for your discussions.”
My 2 cents: My
view from what I have seen and heard and read from articles like the above, I’d
have to say to the defendants arguing they did nothing wrong except defend
their right to storm the capitol and do what they did is this: “Goose, meet
cooked.”
Related article here – good information on treason, sedition, and insurrection.
Related
article also – here is more good background information on this
general topic.
Thanks for stopping by.
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