Federal investigators have signaled some of the defendants in the attack on the U.S. Capitol could be charged with seditious conspiracy, a law enacted to target those who attacked the federal government during the Reconstruction era.
An indictment filed on Jan. 27 charges three of the riot suspects with conspiring to impede Congress’ certification of the Electoral College vote for the 2020 presidential election. The filing alleges those three are members of the Oath Keepers, “a loosely organized collection of militia who believe that the federal government has been co-opted by a shadowy conspiracy that is trying to strip Americans of their rights.”
Friday, prosecutors added six more alleged Oath Keepers as defendants in that conspiracy case. The indictment alleges that one of the suspects, Florida resident Kelly Meggs, 52, wrote Facebook posts referring to a tweet by then-President Donald Trump about the Jan. 6 protest in Washington, D.C.
Trump ‘wants us to make it WILD’:Six more Oath Keepers’ associates charged in Capitol riots conspiracy case
“Trump said It’s gonna be wild!!!!!!! It’s gonna be wild!!!!!!! He wants us to make it WILD that’s what he’s saying,” the indictment said Meggs wrote. “He called us all to the Capitol and wants us to make it wild!!! Sir Yes Sir!!! Gentlemen we are heading to DC pack your s—!!”
Speaking generally on the day after the attack, Michael Sherwin, the acting U.S. attorney for the District of Columbia, said charging some riot suspects with seditious conspiracy is one option “on the table.”
But winning a seditious conspiracy case isn’t easy. Federal prosecutors have brought few cases to trial since the mid-1950s, and they’ve had mixed success.
In 1995, a New York City jury returned guilty verdicts in a seditious conspiracy case against Egyptian cleric Sheik Omar Abdel Rahman and nine others for plotting to bomb New York City-area landmarks and tunnels. Two groups of Puerto Rican nationalists were convicted of seditious conspiracy in unrelated trials decades apart.
But in 1988 an Arkansas jury acquitted white supremacists of seditious conspiracy. Massachusetts jurors reached not guilty verdicts in 1989 against three defendants accused of conspiring against the U.S. government. And a judge granted acquittals in 2012 for members of an armed, anti-law enforcement extremist group in Michigan.
Laws ‘seem tailor-made’ for the U.S. Capitol attack
Many attorneys say it would be appropriate to charge some of the Capitol rioters with seditious conspiracy or with violating another federal law that criminalizes insurrection and rebellion against the United States.
Those laws “seem tailor-made to cover the precise course of conduct engaged in by a number of the defendants who either have been or might still be charged in the attack on the Capitol,” said Laurence Tribe, a constitutional law expert at Harvard Law School.
The federal seditious conspiracy statute can be used to charge two or more people who conspire to “overthrow, put down, or to destroy by force the Government of the United States” or to “levy war against … 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.”
A conviction can carry a 20-year prison sentence. The statute prohibiting rebellion or insurrection carries a 10-year sentence.
Most of the 198 people charged so far by federal prosecutors in the District of Columbia have been accused of less-serious crimes, such as disorderly conduct. But 17 have been charged with conspiracy to commit an offense against the United States, obstruction of an official proceeding, and entering and remaining in a…