On Thursday, a federal grand jury indicted 11 members of the so-called Oath Keepers for seditious conspiracy. Such charges are exceptionally rare—and, quite obviously, extremely serious. If convicted, these defendants could face up to 20 years in prison.
And yet many Americans think that the charges should have been even more serious: treason against the United States. Although that’s not an implausible argument, the Justice Department made the right decision. Treason prosecutions would have introduced significant legal complexity, while doing very little to increase sentences. Seditious-conspiracy charges, by contrast, are perfectly pitched to the gravity of the offenses, and given the substantial evidence laid out in the indictments, should be relatively straightforward to prove.
Seditious conspiracy is defined as “conspir[ing] to overthrow, put down, or to destroy by force the Government of the United States … 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.” In the past 30 years, there have been only four sets of indictments for this offense. Most notably, the Justice Department successfully convicted Omar Abdel-Rahman of seditious conspiracy for his role in the 1993 World Trade Center bombing. But the most recent seditious-conspiracy prosecution—of Michigan militia members in the early 2010s—was a fiasco. A judge dismissed the seditious-conspiracy charges, finding them unsupported by the evidence.
Some have raised concerns about the scope of the seditious-conspiracy statute. For example, the University of Wisconsin law professor Joshua Braver has warned that seditious-conspiracy prosecutions could be subject to significant abuse. After all, the literal language of the statute might cover actions such as the Women’s March, which interfered with Capitol operations during Brett Kavanaugh’s confirmation hearings. Braver prefers the charge of “rebellion or insurrection,” which he believes is a better fit for the events of January 6.
I disagree. Seditious conspiracy is an entirely appropriate charge for some of the January 6 participants, as I suggested at the time. The attack was aimed at the most essential ritual of democracy—the peaceful transfer of power. The possibility that prosecutors might abuse the charge in the future is hardly a reason to shrink from it now, when it is most applicable.
To be clear, seditious conspiracy is relevant for only a small subset of the people who entered the Capitol on January 6. The offense requires a conspiracy—a prior agreement to commit particular offenses; it does not encompass people who simply made impulsive decisions in the heat of the moment. According to the allegations in the indictment, the Oath Keepers plotted their moves for weeks in advance, coordinated weapons stashes outside of Washington, D.C., donned combat and tactical gear, and were in constant communication throughout the attack, all for the purpose of disrupting the certification of the 2020 election results. If this is not a seditious conspiracy, it is hard to know what is.
These alleged facts also warrant at least a consideration of treason charges. Under the Constitution, treason is limited to two offenses: levying war against the United States and “adhering to their enemies, giving them aid and comfort.” Adhering to the enemy is the more familiar type of treason. All of the 20th-century treason cases, such as the prosecution of Iva Toguri, the so-called Tokyo Rose, involved aid to a foreign enemy. By contrast, no person has been charged with levying war against the United States since the 19th century when, for example, the charge was brought against Jefferson Davis, the president of the Confederacy, at the end of the Civil War.
It was also the charge brought in the very first federal treason cases—prosecutions of tax protesters in Pennsylvania following the Whiskey Rebellion of 1794 and Fries’s Rebellion of 1799. The Whiskey rebels attacked the home of a federal tax official and assembled a large group of armed men in opposition to the federal excise tax on whiskey. The Fries’s rebels released prisoners from federal custody out of opposition to a federal property tax. In both cases, Supreme Court justices held that the alleged conduct amounted to treason. The use of force to obstruct a particular federal law, they argued, constituted levying war against the United States.
Storming the Capitol to obstruct the Electoral Count Act and sending members of Congress fleeing in terror is far more egregious—and more of a direct affront to the government—than anything done by the Whiskey rebels or the Fries’s rebels. But the understanding of “levying war” may have changed. In a famous 1851 decision involving armed opposition to enforcement of the federal Fugitive Slave Act, Justice Robert Grier suggested that levying war against the United States requires an intent to overthrow the government entirely, not just to obstruct the operation of one particular law. It was a trial-level decision, but it may prove convincing to courts today. If so, the question would then become whether the defendants sought to overthrow the government in its entirety.
Applied to January 6, this sounds like a law-school-exam hypothetical from hell. After all, the defendants would insist that, far from trying to overthrow the government, they were in fact supporting the incumbent president of the United States. If they honestly, but foolishly, believed that the election was stolen, did they have the requisite criminal intent to commit treason? Who exactly is overthrowing the “government” if one branch decides to wage war on another? Can one overthrow the government by attacking only the legislative branch? These questions are profoundly interesting from a philosophical perspective, but I fully understand why Justice Department attorneys would recoil in horror from having to debate them in court.
A further obstacle to a treason charge is far more mundane. The Constitution requires that treason convictions be supported either by two witnesses to the same overt act or a confession in open court. Although no court has ever addressed the question, videotape evidence is likely not a sufficient substitute for two witnesses; in cases arising out of World War II, for example, the Justice Department decided that radio-broadcast recordings of defendants distributing enemy propaganda were not legally sufficient for conviction. Unless the Oath Keepers begin turning on one another, finding two witnesses to distinct, overt acts may be difficult.
Given all the legal complexities the Justice Department has to consider, seditious conspiracy was clearly the right choice. In a recent speech, Attorney General Merrick Garland pledged that “the Justice Department remains committed to holding all January 6 perpetrators, at any level, accountable under law—whether they were present that day or were otherwise criminally responsible for the assault on our democracy.” The most recent indictments are a promising step in that direction.