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Legal experts say Capitol mob’s actions fit the definition of sedition

Demonstrators walked through the US Capitol after breaching barricades to the building on Wednesday.
Demonstrators walked through the US Capitol after breaching barricades to the building on Wednesday.Victor J. Blue/Bloomberg

The pro-Trump mob’s storming of the US Capitol in Washington, D.C., on Wednesday appears to fit the legal definition of sedition, though it remains to be seen whether anyone will face that charge, legal experts said Thursday.

The Merriam-Webster dictionary definition of sedition is “incitement of resistance to or insurrection against lawful authority.” It’s not surprising that after the stunning breach of the Capitol that resulted in four deaths Wednesday, it was the No. 3 looked-up item on the dictionary website at midday on Thursday.

The legal definition is more detailed. The federal charge of “seditious conspiracy,” which carries a maximum sentence of 20 years, can be brought when two or more people agree to employ force to “prevent, hinder, or delay the execution of any law of the United States” or to forcibly “seize, take, or possess” US property, said constitutional scholar Frank Bowman, a professor at the University of Missouri School of Law.

“The organizers of yesterday’s riot could, I think, be charged under this statute if it could be shown that they agreed to invade the Capitol to stop, hinder, or delay the orderly processing of the election returns – which is a process created by the Constitution and statutes,” Bowman said.

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Laurence Tribe, an emeritus professor at Harvard Law School, said the law “basically says that anyone who, in any place subject to US jurisdiction, conspires to forcibly oppose the authority of the United States or to prevent or delay the execution of US law is guilty of seditious conspiracy. That certainly is what the people who organized and carried out the invasion of the Capitol were doing.”

Tribe said he felt that a separate federal charge of waging rebellion or insurrection, which bears a 10-year sentence, could also apply.

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Bowman said people involved in the riot at the Capitol could end up being charged with “easier and less politically inflammatory crimes.”

But Tribe said charges such as vandalism or trespassing “seem a little trivial. Maybe they had to use the tax laws to get Al Capone, but here the insurrection is clear enough that complaining they just left a mess on the floor seems like a foolish, cowardly evasion of what’s going on.”

“It’s the absolute heart of our system, and they were trashing it not just physically, but conceptually,” he said.

Retired brigadier general Michael McDaniel, associate dean of the Western Michigan University-Cooley Law School, said what the mob did “obviously fits the definition of sedition.”

“This wasn’t just any federal building. It wasn’t just symbolic of federal government. This is the home of representative government,” he said. Noting that Congress was meeting to certify the election, he said, “I can’t think of a more important, even sacred, function for the legislative branch.”

If people are charged, one defense they could bring to bear would be their First Amendment right to protest, he said. “I’m sure it will be raised and it should be,” he said. However, he said, when “you start bashing in the windows and gaining access by the use of force, you’ve gone beyond any definition of expressive conduct.”

Could President Trump himself be charged for his role in firing up the crowd before they went to the Capitol?

Bowman said a seditious conspiracy charge would be tougher to prove in Trump’s case. One problem would be proving he had some sort of agreement with others.

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“Trump could also claim he merely wanted a peaceful demonstration, without (heaven forfend!) any intention of provoking a riotous assembly or a forcible invasion of the Capitol premises. A determined prosecutor could, I think, deal with those problems, depending on what could be shown about what he said to others before the Mall rally. But let’s face it, prosecution of Trump at least on this or any other ground is unlikely,” Bowman said.

Justice Department policy prohibits bringing federal charges against a sitting president. And before Trump leaves office, it’s possible he may pardon himself.

Even if he doesn’t, it’s not clear if there will be the political will to charge him, the experts pointed out.

“The president’s responsibility for this is absolutely clear and central. He was egging them on,” said Tribe. “It’s crucial that he be held accountable.”

However, he said, “Whether the new Department of Justice would charge his aides or the president would be a determination that depends partly on the evidence that’s uncovered by investigating who knew what when in terms of what this group was going to do. There’s also a political element there in the decision of the charging of an ex-president.”

The president’s possible legal problems from the Capitol riot weren’t just a topic of speculation by law professors.

Pat A. Cipollone, the White House counsel, warned Trump that he could face legal exposure for the riot given that he had urged his supporters to march to the Capitol and “fight” beforehand, according to people briefed on the discussion. The president had appeared to White House aides to be enjoying watching the scenes play out on television, The New York Times reported. Vanity Fair reported that Cipollone had asked White House officials not to speak to or enable Trump in any way, lest they get into legal trouble themselves.

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McDaniel said Cipollone’s underlying message appeared to be, “This looks like criminal behavior. Stay away from it. Don’t get involved.”

The US attorney in Washington said that for members of the mob all options were on the table, including sedition charges.

McDaniel said the mob’s actions were also “clearly domestic terrorism,” as it is defined in the 2001 Patriot Act, because it was a “criminal action or activity that is intended to coerce a government or an agency of the government.” The federal law defines the term but doesn’t make it a standalone crime, though a number of states have enacted their own laws, he said.

He warned that there could be more trouble ahead.

“We’ve got an inauguration coming up. We don’t know that we’re at the end of political violence in our country. I sincerely doubt that we are,” he said. “Once you have sort of permitted or endorsed the use of violence, then it is going to be seen as more attractive. Once you begin using political violence, it’s hard to stop that.”

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Martin Finucane can be reached at martin.finucane@globe.com.