On Sunday, CBS aired an interview with Michael Sherwin, who formerly served as head of the U.S. Attorney’s Office for the District of Columbia and led initial prosecution efforts against those charged with involvement in the Jan. 6 Capitol riot.
Who defines what it means “to levy war against” the government of the United States?
Sherwin, who provided more insight into prosecutive strategy than we had previously heard, responded as follows when asked whether he anticipated sedition charges against some of the Capitol riot suspects: “I believe the facts do support those charges. And I think that, as we go forward, more facts will support that.”
Federal charges for sedition should be rare and reserved for only the most egregious assaults on our government and our rule of law. In other words, precisely the kind of existential attack on our democracy that happened in the deadly riot on Jan. 6.
The sedition statute reads:
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.
There are at least two reasons why prosecutors should practice restraint in their use of the sedition statute. To start, more than any other charge except for treason, which involves giving aid and comfort to an enemy, a decision to charge sedition can be potentially loaded with political nuance.
Sedition is a kind of scarlet letter of criminal charges.
For example, who defines what it means “to levy war against” the government of the United States? Could a corrupt president or attorney general assert that one of his political adversaries who stages a sit-in that blocks access to federal buildings is “warring” against the current government? The possibility of exploiting or abusing the statute for political purposes, and to quell those who organize anti-government protests that turn violent, means prosecutors should think twice before launching a charge so fraught with the potential for abuse.
In addition, an actual conviction for sedition affixes a permanent label on the defendant proclaiming they are the antithesis of what it means to be American. Sedition is a kind of scarlet letter of criminal charges. Under a compromised attorney general or tainted justice system, a malevolent president could use sedition convictions to silence organized detractors and create an enemies list of convicted felons.
In this case however, there are four elements of the sedition law that directly apply to the events of Jan. 6.
First, “two or more persons” must “conspire.” Conspiracy charges have already been levied against four leaders of the Proud Boys related to the storming of the Capitol, according to a recent charging document that also cites that more than 60 people were in a secure, encrypted communication system used to coordinate their actions on Jan. 6. Politico reported that a conspiracy indictment has also been pending against 10 members of the Oath Keepers related to the Capitol breach.
Second, for sedition, prosecutors would need to prove the use of “force.” Proving the use of force could be assigned to a first-year law student who would only have to submit video of indicted defendants and their followers during the riot. Such videos might show defendants assaulting police officers, smashing windows, spraying authorities with toxic chemicals and breaching doors into the Senate chamber.
Under a compromised attorney general or tainted justice system, a malevolent president could use sedition convictions to silence organized detractors and create an enemies list of convicted felons.
Third, one statutory element of sedition law available to prosecutors includes the use of “force to prevent, hinder, or delay, the execution of any law of the United States.” The counting of the Electoral College votes by Congress following a presidential election isn’t just a nice thing to do — it’s the law. U.S. Code Title 3, Section 15 mandates that this happen and even sets forth the date and time: “Congress shall be in session on the sixth day of January succeeding every meeting of the electors. The Senate and House of Representatives shall meet in the Hall of the House of Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the Senate shall be their presiding officer.”
While the Electoral College vote count was not “prevented,” it was certainly “hindered” or “delayed.” Because of the uprising, the count was stopped, taken up again hours later and not completed until well after 3 a.m. the next morning.
Fourth, another option within the sedition statute offers prosecutors yet one more angle of approach. If the conspirators use force “to seize, take, or possess any property of the United States contrary to the authority thereof,” they can be charged with sedition.
I can’t think of a property of the United States that more embodies our government than the U.S. Capitol. And I can’t think of a more stark example in recent history of a federal building being “seized.” It took about seven hours for law enforcement to declare the Capitol clear from threats and announce that they were in full control again. Even as Congress worked to complete their count, police and federal agents were still clearing the building to ensure those who had “taken” or “possessed” were gone. And that is why sedition charges must be lodged if investigators determine that the violence on that day was planned for the purpose of stopping the Electoral College vote count.
While sedition charges should be rare, and reserved, they are indeed relevant to what happened at our Capitol on Jan. 6. Perhaps the only question remaining is how broad and how high the conspiracy will reach.