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The Justice Department is now considering sedition charges against the mob that stormed the U.S. Capitol on Jan. 6 as Congress was voting to certify President Joe Biden’s electoral college victory. Some people have even called for prosecution, on charges of sedition, of former President Donald Trump, for inspiring and egging on the rioters before they invaded the Capitol.
The crime of sedition has been defined in many different ways. A broad definition might extend to heated political protests, meant to cast doubt on the competence, good faith or legitimacy of the current government. A narrow definition might be limited to acts of violence, in which people physically attack public officials and public property in a clear effort to overthrow the current government.
U.S. Supreme Court Justice Felix Frankfurter liked to say, “Never paraphrase a statute!” So here’s what U.S. law says now about the crime of “seditious conspiracy”:
“If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to 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 contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.”
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We should be able to see, in this light, why the Justice Department is considering seditious conspiracy charges in connection with the Capitol riot.
Before and on Jan. 6, there appears to have been a conspiracy “by force to prevent, hinder, or delay the execution of any law of the United States,” most obviously the law specifying the date and time for the counting of electoral college votes. There also appears to have been a conspiracy “by force to seize, take, or possess” a property of the U.S.
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To fall within the law, participants have to conspire to do something specific, and to do it “by force.” True, the law has some vagueness, and overreaching is possible. But if people actually conspire to seize a government building, by force, or to prevent the execution of federal law, by force, a federal crime has been committed.