Federal Prosecutors charged almost a dozen members of the Oath Keepers group with “seditious conspiracy” yesterday (Jan. 13, 2022), in connection with the riots at the U.S. Capitol on January 6, 2021. Let`s take a look at what they face, if convicted.
What is Seditious Conspiracy
Seditious conspiracy is a rarely charged but serious offense against the U.S. government itself, and not against a particular person as with most crimes. It`s an offense that was adopted from old English law by the country`s founders. Black`s Law Dictionary, a trusted source used by lawyers and judges, defines seditious conspiracy as “a criminal conspiracy to forcibly (1) overthrow or destroy the U.S. government, (2) oppose its authority, (3) prevent the execution of its laws, or (4) seize or possess its property.”
The actions of some people at the Capitol riots seem to easily fit that description of seditious conspiracy. Here`s the full text of seditious conspiracy under 18 U.S.C. section 2384:
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 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.
While it seems like one long, confusing sentence (nobody said lawmakers were good writers), the statute can be broken down into its main elements:
(1) A conspiracy between two or more people,
(2) to do any of the various things, by force, listed in the statute.
A conspiracy is further defined under 18 U.S.C. section 371 as:
(1) an agreement by two or more persons to perform an illegal act, (2) the willing participation by the defendant, and
(3) an overt act in furtherance of the conspiracy.
Federal prosecutors must prove all of these necessary elements, beyond a reasonable doubt, in order to obtain a conviction. A conspiracy, however, is not difficult to prove. Prosecutors don`t have to show that a crime was committed or even partially committed, only that more than one person agreed to commit a crime and took steps toward doing it.
Do prosecutors have enough evidence to prove all of the elements of seditious conspiracy against the defendants? Prosecutors say they have video and other evidence showing the defendants not only participated in the riots but organized most of it. So why only the charge of conspiracy to overthrow the government? Because it`s an easy win for prosecutors. Conspiracies are inchoate crimes that require little effort by prosecutors to secure a conviction. The federal criminal justice system is replete with conspiracy convictions, even when an actual crime occurred. Why? Because they`re easier to prove and the penalty is the same as if the full crime was committed.
How is Seditious Conspiracy Different from Treason?
Seditious conspiracy might seem like treason, but it`s not. Treason requires that the person committing the offense has a “duty of loyalty” to the U.S. government, such as a military officer or elected leader, and can happen anywhere in the world. But seditious conspiracy can be committed by any ordinary citizen and must happen within the U.S. or its territories.
So, the jurisdictional “hooks” of the two crimes vary drastically. It`s helpful to compare the seditious conspiracy statute, noted above, with the treason statute under 28 U.S.C. section 2381:
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United State or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000, and shall be incapable of holding any office under the United States.
See the difference between seditious conspiracy and treason? In action, they seem the same but under law they`re quite different.
What About the First Amendment`s Right to Free Speech Against the Government?
Some have argued that seditious conspiracy punishes free speech and violates the First Amendment`s guarantee to protest against the government. The courts have roundly rejected these arguments, though. A person`s right to free speech is not protected, the courts say, when the intent it to overthrow the government “by force.”
That by force language is important, because a mere discussion criticizing the government is not seditious conspiracy.
What`s the Punishment for Seditious Conspiracy?
Until 1956, seditious conspiracy was punishable by up to 6 years in prison and a fine, or both. Now it`s up to 20 years in prison. This doesn`t mean that a sentencing judge arbitrarily picks a number between zero and 20 and that`s the sentence. There are many factors under 18 U.S.C. section 3553(a) that the judge must consider, such as the seriousness of the offense, the background of the person, the need for a proper punishment, and the sentencing range under the U.S. Sentencing Guidelines (USSG).
The guideline for seditious conspiracy is the same one for treason, USSG section 2M1.1, and has an offense level of 43. That`s “life” in prison even for first-time offenders. But the guideline allows for a lower offense level if the judge thinks the underlying crime didn`t amount to an act of treason. In that case, the offense level for the other crime is the base offense level.
Still, the guidelines are only advisory, and a judge can go up or down — if they have a good reason to do so.
An interesting note: The U.S. Sentencing Commission defines treason as “tantamount to waging war” against the United States, which it says can also apply to seditious conspiracy. Are the two really that different, after all, if they can be sentenced as the same conduct? Perhaps the only difference is the limits that Congress has put on the punishments in the statutes, allowing for the death penalty for treason, but maxing seditious conspiracy at 20 years in prison.
Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. He is a consultant in federal post-conviction procedure and an authority on federal sex offense issues.