Criminal Justice

Do These Seditious Conspiracy Convictions Prove the Capitol Riot 'Was Not Spontaneous'?

A jury convicted members of the Proud Boys without evidence of an explicit plot, let alone one that most of the rioters were trying to execute.


A federal jury yesterday convicted four Proud Boys of participating in a seditious conspiracy aimed at keeping Donald Trump in office after Joe Biden won the 2020 presidential election. Those verdicts, former federal prosecutor Dennis Aftergut argues in an MSNBC opinion piece, show that the January 6, 2021, riot at the U.S. Capitol was "an organized, violent uprising meant to overturn the 2020 election." According to Aftergut, "It's now established beyond a reasonable doubt that the Capitol siege was not spontaneous, but rather a planned assault by force on our democracy."

There are a couple of problems with that characterization. First, the prosecutors in this case, who relied heavily on questionable inferences, never showed that the defendants explicitly planned to disrupt congressional certification of Biden's victory. Second, it seems clear that most of the Trump supporters who participated in the riot did act spontaneously, a point that Aftergut glides over.

Seditious conspiracy is a felony punishable by up to 20 years in prison. As relevant here, it occurs when two or more people conspire to "oppose by force" the authority of the U.S. government or "by force to prevent, hinder, or delay the execution of any law of the United States."

The Proud Boys have a long history of street violence, and they were outraged by Trump's defeat. Members of the group played a conspicuous role in confrontations with police and in breaching the Capitol on the day of the riot. But that does not necessarily mean those acts of violence and vandalism resulted from a seditious plot.

Federal investigators obtained a "vast amount of evidence," including "more than 500,000 encrypted text messages," The New York Times notes. But they "never found a smoking gun that conclusively showed the Proud Boys plotted to help President Donald J. Trump remain in office."

The star prosecution witness was Jeremy Bertino, a former Proud Boy who pleaded guilty to seditious conspiracy. The Times notes that he "repeatedly told investigators that the Proud Boys never had an explicit plan to stop the election certification and that he himself never fully expected violence to erupt on Jan. 6."

During the trial, Bertino partly repudiated those statements, saying he was trying to "protect myself and protect everyone else from getting in any trouble." He nevertheless reiterated that he had no knowledge of a plan to disrupt the electoral vote count. Rather, he inferred from "cumulative conversations" with other Proud Boys that the group would use violence toward that end.

"It was common knowledge that if everything else failed, there was no other option than to go into a civil war, a revolution," Bertino said. "This was a common topic of conversation in all of the chats I was in." According to his testimony, the Times says, "There were no explicit orders to attack the Capitol on Jan. 6," but "members of the group felt there was an implicit agreement to band together that day and to take the lead in stopping Mr. Biden from entering the White House."

Prosecutors sought to bolster their case by presenting videos of violent behavior during the riot by Proud Boys who were only tenuously connected to the defendants. The defense strenuously objected to that evidence, saying the government's argument amounted to "guilt by association." The Times describes it as "a novel legal strategy" that portrayed the Proud Boys in the videos and other rioters unaffiliated with the group as "tools" of the defendants' implicit conspiracy.

In the end, the jury accepted that argument, convicting former Proud Boys leader Enrique Tarrio, who did not participate in the riot or attend the rally that preceded it, of seditious conspiracy. They also found Ethan Nordean, Joseph Biggs, and Zachary Rehl guilty of seditious conspiracy while acquitting Dominic Pezzola of that charge.

All five defendants were found guilty of conspiring to interfere with congressional duties, a felony punishable by up to six years in prison. All but Pezzola were convicted of conspiring to obstruct an official proceeding, a felony punishable by up to 20 years in prison.

In addition to the conspiracy counts, all five defendants were found guilty of actually obstructing an official proceeding, which is subject to the same penalties as conspiring to do so, plus civil disorder charges and destruction of government property. Pezzola was convicted of assaulting, resisting, or impeding police officers and robbery of government property.

The overlapping conspiracy verdicts, which by themselves entail maximum penalties totaling 46 years, present a bit of a puzzle. If Pezzola conspired to interfere with Congress as it ratified Biden's victory, didn't he also conspire to disrupt an official proceeding? And if he participated in a plot to stop legislators from executing their duties under the Electoral Count Act, that seems pretty close to the seditious conspiracy charge, which alleged a plan to "prevent, hinder, or delay" the execution of that law.

Similarly, Oath Keepers leader Stewart Rhodes was convicted last November of seditious conspiracy, but he was simultaneously acquitted of conspiring to disrupt an official proceeding and conspiring to interfere with legislators' duties. The seditious conspiracy in which Rhodes participated evidently did not involve the Capitol riot itself, although one could be forgiven for thinking otherwise.

Leaving aside the "novel legal strategy" that prosecutors used in the Proud Boys case, seditious conspiracy charges are inherently amorphous. On its face, the statute could apply to any protest that includes violence if the government alleges that the organizers intended that result and aimed to interfere with "the execution of any law of the United States." That leaves prosecutors with broad discretion that invites politically motivated charges.

In prosecuting members of the Oath Keepers and the Proud Boys, the Justice Department had a strong incentive to charge seditious conspiracy as a way of demonstrating its seriousness and affixing specific blame for the riot. Attorney General Merrick Garland yesterday emphasized the importance of that particular charge.

"The evidence presented at trial detailed the extent of the violence at the Capitol on January 6th and the central role these defendants played in setting into motion the unlawful events of that day," Garland said in a press release. "We have now secured the convictions of leaders of both the Proud Boys and the Oath Keepers for seditious conspiracy—specifically conspiring to oppose by force the lawful transfer of presidential power. The Justice Department will never stop working to defend the democracy to which all Americans are entitled."

Assistant Attorney General Kenneth A. Polite Jr. likewise declared that "today's verdict demonstrates the Department's commitment to protecting our institutions of government and holding those who seek to attack them accountable." Assistant Attorney General Matthew G. Olsen joined Garland in stressing the importance of debunking the idea that the Capitol riot was unplanned. "This trial pulled back the curtain on a premeditated violent attempt to prevent the peaceful transition of power in America," he said. "The seriousness of today's convictions bring[s] accountability to defendants who attacked our democracy on January 6."

The Justice Department's take, of course, fits the narrative favored by Democrats who reflexively describe the Capitol riot as an "insurrection." But that term implies a level of planning and organization that does not fit the chaotic reality of what happened that day.

This brings us back to Aftergut, who thinks the seditious conspiracy convictions conclusively prove that the riot "was not spontaneous." But even if you think the Proud Boys deliberately acted as agitators as part of an "implicit" plan to violently subvert democracy, most of the people who entered the Capitol grounds and the building itself that day seemed to be acting in the heat of the moment, driven by Trump's stolen election fantasy.

Aftergut implicitly admits as much. "The Proud Boys, Oath Keepers and allied groups were the catalysts for the violence," he says. "The Proud Boys and other groups provoked other, already angry attendees to become the Jan. 6 mob."

But for the Proud Boys, the Oath Keepers, and "other groups," Aftergut seems to be arguing, there would have been no "Jan. 6 mob." That counterfactual supposition seems highly doubtful, especially since Aftergut concedes that the protesters were "already angry." But even in this telling, those angry Trump supporters by and large acted emotionally and impulsively.

Aftergut also exaggerates the extent of the violence, inviting us to assume that the rioters shown in the prosecution's videos were typical of the crowd. "Federal prosecutors have now convicted nearly 500 defendants ['more than 600,' per the DOJ press release] for their roles in the Capitol violence," he says. Yet the Capitol riot defendants generally have not been charged with violent crimes.

Of the 1,000 or so defendants who had been charged as of early March, the Times reported, 326 had been charged with "assaulting, resisting, or impeding officers or employees." That group included 106 people who had been "charged with using a deadly or dangerous weapon or causing serious bodily injury to an officer."

In other words, roughly two-thirds of the protesters who had been arrested were charged with nonviolent misdemeanors such as "entering or remaining in a restricted building or grounds," "disorderly and disruptive conduct in a restricted building or grounds," "disorderly conduct in a Capitol building," and "parading, demonstrating, or picketing in a Capitol building." And since the FBI prioritized the most serious and readily provable cases, the nonviolent portion of the entire group probably was larger.

I am not saying those protesters did not break the law or that their crimes do not merit prosecution. But it is highly misleading to suggest that all, or even most, of the January 6 defendants participated in "the Capitol violence," let alone that they did so with the deliberation and intent that the word insurrection suggests.