Prosecutors probing the Jan. 6 riot at the U.S. Capitol are building complex conspiracy cases that take aim at far-right activists, zeroing in on the motives and ideologies of the extremist groups that participated in the siege.
After arresting more than 150 Donald Trump rioters for relatively minor offenses like trespassing and disorderly conduct, law-enforcement officials said on Tuesday they are poised to file more serious charges under the rarely used federal sedition statute. That would raise the stakes of the investigation for both prosecutors and accused rioters: The law doesn't lend itself to easy convictions, but it carries a prison sentence of as long as 20 years.
In the initial scramble to arrest the most visible perpetrators of the siege, U.S. prosecutors built cases largely using photos and videos culled from social media. Now they are relying on more traditional law-enforcement tools, including over 500 grand-jury subpoenas and search warrants, to probe the origins of the insurrection and the motives of the rioters.
The sedition statute criminalizes any attempt by two or more people to overthrow the government, take control of its property or disrupt the execution of U.S. laws. Members of right-wing groups such as the Proud Boys and the Oath Keepers would be the likely targets of a sedition charge, which could force courts to reckon with the role of extremist militias in American society.
Prosecutors "will put those ideologies on trial," said Alan Rozenshtein, a former legal adviser in the Justice Department's national security division who now teaches at the University of Minnesota's law school. "If there's a conviction, the message will be that to be a boogaloo boy or an Oath Keeper is to believe in seditious conspiracy."
Much will depend on which part of the statute the prosecutors focus on. Under a broad interpretation of the law, two people who worked together to steal a podium or some other piece of government property from the Capitol could be charged with sedition.
But prosecutors may actually be planning to charge rioters under the part of the statute that criminalizes attempts to overthrow the government, which would mark a turning point in the probe as lawmakers and civil rights advocates debate how best to hold domestic extremists accountable for their crimes.
"The statute suggests that proving seditious conspiracy can either require a lot or not a lot depending on which part of the statute prosecutors charge," said David Sklansky, the faculty co-director of the Stanford Criminal Justice Center. "Charging people with conspiring to overthrow the government is taking on a big burden."
Proving such a charge would present challenges that U.S. prosecutors have not had to navigate in the initial wave of cases, which have focused largely on clear instances of law-breaking inside the Capitol. Investigators would have to show that the rioters communicated in the days leading up to the siege and find evidence of intent to subvert democracy.
"That's not going to show up in the video, and probably is not going to be a thing that people are admitting to spontaneously on Facebook," said Jeffrey Bellin, a criminal justice expert at William & Mary Law School. "Those will become much more serious cases and take a long time."
Signs of that kind of intensive investigative work have begun appearing in FBI affidavits in some of the cases. Agents have cited testimony from informants and cooperating witnesses, as well as private emails and text exchanges. Prosecutors are almost certainly deploying those and other investigative tools as they pursue another long-term target of the probe: a possible felony murder charge related to the death of Capitol Police officer Brian Sicknick, who was reportedly bludgeoned with a fire extinguisher during the riot.
In the highest-profile cases so far, the U.S. accused three members of the Oath Keepers of conspiring to obstruct an official proceeding. As part of that investigation, law enforcement officials obtained audio recordings of the rioters communicating via the Zello app, as well as records from private Facebook conversations.
But prosecutors stopped short of charging the trio with sedition, at least for now. Michael Sherwin, the acting U.S. attorney for the District of Columbia, has hinted that some of the people who have been arrested on minor charges like disorderly conduct could face more serious accusations as the investigation progresses. In a court filing on Jan. 24, prosecutors said that Eric Munchel, who was photographed holding white plastic handcuffs at the Capitol, could eventually face a sedition charge.
"Part of the reason they brought charges that some people have characterized as not as serious as they would've expected is to make sure people know the law is coming," said Harry Sandick, a former U.S. prosecutor in New York. "To put people into the criminal justice system before they strike again."
The seditious conspiracy charge has a long and vexed history. In the 1950s, a group of Puerto Rican nationalists were convicted of seditious conspiracy for storming into the Capitol and shooting members of Congress — an attack eerily similar to the siege on Jan. 6. Federal prosecutors also won sedition convictions against the group of terrorists that masterminded the 1993 World Trade Center attack, including Omar Abdel-Rahman, better known as the blind Muslim cleric.
But sedition charges brought in 1987 against a group of White supremacists were rejected by a jury. And a sedition case in 2010 against members of a militia group in Michigan was dismissed when a judge ruled that prosecutors failed to show the defendants opposed a "positive assertion of authority" by the U.S. government.
Free-speech advocates have long feared that the government could use the broad language in the sedition statute to paint legitimate anti-government protests as insurrection. In September, former Attorney General William Barr raised the prospect of charging Black Lives Matter protesters with sedition, though it was not clear which element of the law he thought would apply.
"There's a danger in using charges that have such a politicized history and come very close to criminalizing dissent," said Shirin Sinnar, a law professor at Stanford who studies political violence. "The more you lower standards in this sort of situation, the more you lower standards related to protest and other First Amendment activity generally."
The long-term precedent that a prosecution might set is one reason that the Justice Department may be taking its time to build sedition cases stemming from the Capitol riot, said Rozenshtein of the University of Minnesota.
"If the government does bring seditious conspiracy charges, that'll make it easier for the next government to do so," he said. "But DoJ can minimize that chance by being very careful."
