Sedition Cases Against Capitol Rioters ‘Will Bear Fruit Very Soon,’ Says FBI

Sedition charges in the works for Capitol rioters. On Tuesday, the Department of Justice announced that it will bring sedition charges against people who stormed the U.S. Capitol on January 6. The punishment for seditious conspiracy is up to 20 years in prison.

So far, the Capitol riot has spawned more than 150 federal cases and more than 50 cases in D.C. court, FBI Assistant Director in Charge Steven D’Antuono said yesterday, adding that the FBI has opened more than 400 subject case files. (Back on January 15, only 42 people faced federal charges.)

As for seditious conspiracy cases: “Yes, we’re working on those cases, and I think those results will bear fruit very soon,” D’Antuono said.

Calls for sedition charges haven’t stopped with people who stormed the Capitol, with some raising the possibility of sedition charges against politicians who spread election fraud conspiracy theories or encouraged people to come to D.C. to protest.

Under federal law, the crime of seditious conspiracy is defined as two or more people conspiring “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.”

While this might technically apply to some folks involved in the events of January 6, “sedition charges are almost always a terrible idea,” cautions Reason‘s J.D. Tuccille.

“Sedition prosecutions in the U.S. have a particularly shameful history,” as Bloomberg‘s Noah Feldman pointed out last fall in a piece titled “Sedition laws are the last resort of weak governments.”

Not only is their historical use full of horror stories, but their very nature makes them ripe for abuse at any time, as a catchall threat against anyone who challenges government policy or criticizes government actions. They can also be used to escalate criminal acts at any protest around the country into a federal case, as former Attorney General William Barr endorsed last year.

Many of the people who stormed the Capitol deserve some charges, and seditious conspiracy might seem as good as any at a glance. But reviving the use of sedition charges like this could backfire against free speech and protests more broadly.

Law professor and blogger Eugene Volokh explains a little bit more about sedition and seditious conspiracy charges:

This is just a special case of the broader proposition that conspiring to commit a crime can itself be a crime. You can be punished under state law for conspiring to commit murder or theft or what have you. You can be punished under federal law for conspiring to commit bank robbery, or to defraud the federal government. Likewise, you can be punished under the “seditious conspiracy” statute for conspiring to illegally oppose the enforcement of the law.

The current federal statute on sedition is, at the very least, much less severe than its historical counterpart:

[Seditious conspiracy] is quite a different statute from the Sedition Act of 1798 (or from the common-law crime of seditious libel), which punished (among other things) false and malicious speech intended to defame the federal government. And to the extent that the seditious conspiracy law punishes agreements to commit crime, which may be expressed by speech, such conspiracy is viewed as constitutionally unprotected, because it is speech integral to the criminal conduct that is being planned. For more on this, see U.S. v. Rahman (2d Cir. 1999).

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IMPEACHMENT UPDATE

Republicans declare impeachment trial itself unconstitutional. The majority of GOP senators designating the latest Trump impeachment trial unconstitutional wasn’t enough to stop it from moving forward. But its ultimate prospects aren’t good. “Lawmakers narrowly killed a Republican effort to dismiss the impeachment charge as unconstitutional,” says The New York Times. But the 55–45 vote “strongly suggested that the Senate would not be able to convict the former president.” All Democrats plus at least 17 Republican senators need to vote to convict Trump in order for it to happen.

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FREE MINDS

Indiana lawmakers are trying to make it harder for Libertarians to get on ballots. A new measure (House Bill 1134) from state Rep. Ethan Manning (R–Denver) “would require Libertarians to collect signatures of registered voters to run for governor or U.S. Senate. Under current law, Libertarians nominate those offices in a primary convention and are not required to gather signatures required of Republicans and Democrats as part of the primary ballot process,” notes The Journal Gazette.

Manning’s bill would still allow Libertarians to nominate governor and U.S. Senate candidates via convention but would then also require the nominee to meet the signature requirement, which is 500 registered voters for each of the state’s nine congressional districts.”

“Rep. Matt Pierce, D-Bloomington, said a cynical person would see it as a bill to punish Libertarians because they did well in the last gubernatorial election, and some believe they siphon votes from Republicans. …

Rep. Cherrish Pryor, D-Indianapolis, said the bill adds more requirements on Libertarians without giving them any new powers or advantages.”

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FREE MARKETS

Apple and Google sued over Telegram posts. “Here’s an interesting lawsuit, brought to you by some familiar names,” writes Tim Cushing at Techdirt. “And by ‘interesting,’ I mean ‘exceedingly stupid.'”

Apparently, former U.S. ambassador and Coalition for A Safer Web head Marc Ginsberg is suing Apple over content posted to encrypted messaging app Telegram, which is not affiliated with Apple except insofar as the Telegram app is available through the Apple app store. Ginsberg argues that some Telegram posts and chats are bad, so Apple shouldn’t even make Telegram available. More from Cushing:

Ginsberg claims the Telegram app violates Apple’s developer guidelines and California’s hate speech law and should be removed from the app store. Because Apple hasn’t removed the app, it has been downloaded and used by people who engage in anti-Semitic speech. (Ginsberg is Jewish.) Because Telegram refuses to remove this content, it somehow leaks into Ginsberg’s life through the app store—even if Ginsberg has never downloaded the app or engaged with its users.

Ginsberg is also suing Google over making Telegram available through the Google Play store.

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QUICK HITS

• President Joe Biden is canceling the federal government’s contracts with private prisons. More details here from Reason‘s C.J. Ciaramella.

It’s a good thing, but not even remotely huge. The problem in America is PUBLIC prisons, private prisons are a mere asterisk. And not a single person will be released because of this. https://t.co/b8zqzaZdDl

— David Menschel (@davidminpdx) January 26, 2021

• A federal judge blocked Biden’s 100-day moratorium on some deportations after Texas Attorney General Ken Paxton challenged the order and sought a temporary order forbidding the Department of Homeland Security from enforcing it.

• A federal judge ordered Florida prosecutors to destroy massage parlor surveillance camera videos featuring Robert Kraft and other patrons of Orchids of Asia Day Spa since the video was obtained unlawfully.

• Chicago teachers may soon be going on strike. The Chicago Teachers Union “told its members to work from home Wednesday after failing this week to reach an agreement with Chicago Public Schools over reopening conditions, a move that suspends in-person classes that had already resumed and puts the union on the verge of a strike if a deal isn’t reached over the next few days,” reports the Chicago Sun-Times.

• A New Jersey teachers union says schools might not reopen for “maybe another year.”

• South Carolina is trotting out its rarely used obscenity statute against a couple who filmed themselves having sex in public.

• Small websites and apps need Section 230, writes the CEO of MeWe, Mark Weinstein, in the Wall Street Journal:

Those who want to get rid of Section 230 say this would stop social networks and websites from unfairly censoring their users’ political comments. In reality, it would give them an incentive to censor far more aggressively. To protect themselves from being sued over content, they would remove anything remotely controversial. Users would be spied on constantly.

Ironically, this would help Facebook, Twitter, Google and other social-media giants while hurting smaller companies and new startups.

• New legislation in California “aims to change expert testimony and forensic evidence legal standards … to make it easier for falsely accused individuals to challenge wrongful convictions,” reports Jurist.

• A new study examines how Americans use their $600 stimulus check money. Households earning under $75,000 are more likely to spend the money relatively quickly, while higher earners are more likely to save the payment.

• Another Democratic administration, another push to drastically hike the national minimum wage: “House and Senate Democrats on Tuesday reintroduced a bill to raise the federal minimum wage to $15 an hour by 2025, more than doubling the current $7.25 hourly rate,” notes Reason‘s Billy Binion.