As Trump loses at SCOTUS, the Sedition Case Heats Up

On Conspiracies, Coups and Escalating Cases

Hi — Ari here — with a breakdown of the escalating charges in the criminal probe into the insurrection…

What are we up against?

What happened on January 6 of last year? The answer is not simple, and there may be more than one answer. Here are a few:

• It was a rally that morphed into a criminal mob.

• It was an impeachable, illegal attempt to steal the election.

• It was an insurrection. 

• It was sedition.

• It was an effort to violently “support” a broader coup.

Most of those answers are quite grave; several have the consensus of both parties (insurrection); some broke on partisan lines (impeachment); others are matters of facts and law rather than politics (sedition).

January 6. c/o Brent Stirton/Getty Images

So while the interpretation and “categorizing” of all this can risk becoming semantics, or even feel exhausting, it is also central to how a civilized society confronts and punishes this kind of act. “Mob chaos” is bad; but it is less bad, and punished less, than organized sedition. Street violence also calls for very different measures than an ongoing insurrection (reinforcing Capitol security, for example, versus arresting seditionists and tracing their links to people in, or seeking power in, the government.)

Sedition 

That brings us to a turning point in the federal criminal probe of the January 6 attack, which is now the largest investigation in U.S. history. The DOJ is now charging part of the attack as a seditious conspiracy. 

That is one of the most serious felonies on the books. It has not been charged in over a decade, and carries up to 20 years in prison.

It is a formal view that the intent and object of (some) participants was to thwart the peaceful transfer of power of the Presidency.  

Here’s how prosecutors put it in charges against militia founder Stewart Rhodes:

Trying to oppose the lawful transfer of presidential power by force…

DOJ charged him under the seditious conspiracy law, defined as when: 

two or more persons conspire to overthrow.. or to destroy by force the Government of the U.S… or by force, to prevent, hinder, or delay the execution of any law of the U.S.

Stewart Rhodes’ mug shot.

They tried to end democracy

The evidence shows many people tried to overthrow the election and keep Trump in power. Many even said so in public.  

In the language of federal law, doing so through “force” is sedition. 

In the language of political science, doing so by force—through an organized attempt to seize military force or deploy violence—is a coup.

So this new case resides at the crux of those attacks on democracy. 

Identified Oathkeepers—members of Rhodes’ militia—in Washington D.C. on January 6, 2021. c/o Robert Nickelsberg/Getty Images

Not every person verbally “supporting” the overthrow of the election is likely to be charged, in contrast to the high criminal exposure for people who acted to purse sedition. That may sound odd—this is all pretty serious stuff—but the DOJ generally does not indict people who talk up “revolution,” or use heated rhetoric about losing a race, whether it’s at a rally or in a comment online.  

That is part of why some Trump partisans seem to talk so loosely about how they intended to keep Trump in power after he lost—there are ways to talk that way without inviting much criminal liability. Whether there are other sanctions for that in our democracy, and whether such “soft authoritarianism” can flourish, is as much a civic question as a legal one. 

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What’s next?

About a year out from the insurrection, the DOJ’s escalation is significant. It is also one of the first legal moves to go beyond some of the “pawns” who trespassed into the Capitol, and to pursue organizers and leaders. And it comes as other investigations are gathering more evidence—like Congress beating Trump’s bid to block evidence at the Supreme Court this week, and a Georgia D.A. requesting a grand jury for her local probe of Trump’s actions in that state specifically.

Attorney General Garland recently said this probe is ramping up, and these are the kind of cases that put pressure on defendants to cut deals and share who, if anyone else, was also in on their alleged conspiracies.