Not content with spreading lies about a conspiracy of antifa extremists that doesn’t exist, Attorney General William Barr wants to give Trump an additional October surprise by dropping a massive charge on protesters who have raised their voices against racial injustice and police violence. From even before he stepped into the White House, Trump has claimed there was a “coup” trying to oust him from office. Since Barr hasn’t been able to find such a coup in the intelligence community, it seems he’s now decided to blame people who oppose Black people being murdered.
As The Wall Street Journal reports, Barr has instructed federal prosecutors looking to bypass charges of vandalism or curfew violation and go straight for … attempting to overthrow the government. No matter how many times Trump tweets such a claim, treason has a very specific meaning in the Constitution that prevents Barr from tossing that charge around randomly. But that doesn’t apply to the other big stick available to the Department of Justice (DOJ): Sedition.
Sedition has a conveniently amorphous definition, including “to prevent, hinder, or delay by force the execution of any law of the United States” or “to take, seize, or possess by force any property of the United States.” Which means that Barr could theoretically laden this mega-charge onto everyone in Portland, Oregon who so much as set foot on federal property or attempted to block his unmarked vans from grabbing people off the streets. And if he can get a conviction, the penalty is 20 years.
Trump and Barr have repeatedly made claims that have positioned those protesting police murder and brutality has being “extremists” and “anarchists” who are out to bring down civil authority. Trump’s doomsday ads attempt to turn those protesting for equal rights into the scary terrorists, and Trump has made repeated claims that antifa is behind everything from murders to forest fires, even when that means directly contradicting FBI investigators on the ground.
Barr’s phone call to prosecutors in which he encouraged them to “be aggressive” when charging protesters, including hauling out the possibility of sedition, represents an escalation of the claims Barr has been making in appearances on Fox News and right-wing media. Trump has made focusing on protesters with racist language like claims they are coming to “end the suburbs” and “destroy the American dream” a central theme of his reelection campaign. Barr is now following up by inflating the threat posed by demonstrators.
It’s not clear that Barr means to actually win any of these cases, or even to prosecute them. Proving sedition requires proof of an actual conspiracy against the government or its agents, which can’t be limited to speech.
For example, in 2010 nine members of the Hutaree militia group were charged with sedition after they made plans to execute local officials, then set a trap for police who would attend the funeral. The planning included not just talk, but piling up weapons and emailing members with plans for constructing bombs. Despite a five-count indictment against the men from a grand jury, a federal district judge overturned the charges, saying that the case “does not prove beyond a reasonable doubt that defendants reached a concrete agreement to forcibly oppose the United States government.”
But simply unpacking the sedition charge against people whose weapons were spray paint or tossing back a canister of tear gas may accomplish everything Barr, and Trump, want. Like other actions taken by the DOJ, it shows that this White House is willing to go hugely overboard in prosecution, and it allows Trump to advertise the charges as if they’ve caught some of those phantom antifa militants.