The insurrectionists were inside the US Capitol building, waving flags, shouting demands and targeting lawmakers with deadly threats in a politically-motivated revolt. The damage from the siege, which shocked the nation, is still visible in the House chamber.
The perpetrators of that attack and their accomplices were charged and convicted of, among other crimes, seditious conspiracy. That federal statute criminalizes plots to overthrow the government or to forcefully “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 received prison sentences that can be measured not just in years, but decades.
Is this news to you? If so, perhaps it is because this attack on the seat of our nation’s government happened in 1954. It was carried out by Puerto Rican nationalists demanding independence for the US territory, who opened fire in the House chamber, wounding five members of Congress, one severely. Miraculously, no one died.
Yet as we approach the first anniversary of the Jan. 6 violent besiegement of the Capitol by a largely white mob of pro-Trump rioters bent on forcefully stopping the certification of the 2020 election results, not a single one of the more than 700 people who have been arrested has been charged with seditious conspiracy or the similar federal crime of insurrection. Yes, insurrection is a crime — one that carries, as a penalty, the inability to hold any future elected office. That’s quite relevant in this case, as well.
The lack of charges are despite the fact that the attack wasn’t just on those inside the building, but on democracy itself. It’s despite the fact that the insurrection was deadly, and the rioters were fortified by self-proclaimed militiamen and far-right and white supremacist groups like the Proud Boys and No White Guilt.
Legal experts largely agree that treason charges are inapt, because that statute applies only in wartime (though I think a strong argument can be made that Jan. 6 was a declaration of war.) But history is full of examples where other uprisings have resulted in charges of sedition conspiracy and insurrection, something that — despite ample video evidence and the admissions of those involved — hasn’t happened here. There is precedent. But there appears to be no will.
Why? Only Attorney General Merrick Garland and the Justice Department prosecutors working under him know for sure.
There was an appetite within DOJ to charge under the sedition law early on — at least according to Michael Sherwin, former acting US attorney for the District of Columbia, who said so in a March “60 Minutes” interview.
“I believe the facts do support those charges. And I think that, as we go forward, more facts will support that,” Sherwin said in the interview.
That caused swift action — against Sherwin. He was referred to the DOJ’s Office of Professional Responsibility for his statements in the interview. And we’re still waiting for those charges.
It’s fine for the DOJ to want to speak with a singular voice, and discourage individual prosecutors from getting out over the department’s skis. But long after Sherwin left the DOJ for private practice, we’ve yet to see prosecutors make the case he seemed to think was such a slam dunk.
Some current and former Justice Department prosecutors tell me on background that the skittishness may be due to the last time seditious conspiracy charges were filed by federal prosecutors — in a 2010 Michigan case charging members of an anti-government militia with plotting to kill police officers and overthrow the government.
A federal judge tossed the charges, ruling that much of the evidence involved the alleged seditionists talking about killing cops and staging an insurrection — and such talk is protected by the First Amendment. Such judicial rebukes are powerful disincentives when it comes to making future charges.
But history could be a guide for prosecutors, at least in cases where the alleged rebellion serves a different cause. John Brown, the 19th century abolitionist who led a raid on a federal arsenal to start a slave rebellion, was charged with conspiracy and Virginia state treason, convicted, and executed. Nat Turner was charged, convicted and executed for insurrection for the slave revolt he led. And there was the 1954 insurrection. This nation hasn’t always been reticent to call a thing a thing. It just seems to depend on who is leading the thing, and why.
But if the Justice Department doesn’t clearly call Jan. 6 what it was — a seditious insurrection — and lodge criminal charges accordingly, that allows society to tacitly whitewash and excuse it. A year is already too long to wait for the letter of the law to be followed. It’s up to Garland to decide when the wait might become too late.