What Is Seditious Conspiracy?

The relevant provision of the U.S. Code seems oddly relevant.

Here is the federal law defining the offense of "seditious conspiracy."

18 USC §2384 - Seditious Conspiracy

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 to 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.(Emphases added)

Is this provision relevant today? Discuss.

Comments

[Bored Lawyer]

Is this provision relevant today?

By today, I assume you mean the events of today, and not just today in general.

Answer is yes. Although I recall that when rioters tried to storm the federal courthouse in Oregon, and AG Barr suggested that authorities look into this as a possible charge, there was a major freakout.

Personally, I would hang them all. But if you apply the law unevenly, be prepared for some of the populace to lose faith in the system.

[Dr. Ed 2]

Some?

And I imagine that the people found inside the capitol will be charged with simple trespassing or the dc variant thereof.

[SimonP]

You've been openly enthusing about violence on this day for at least a couple of weeks. You're a traitor and a scoundrel. You must be mighty pleased about what's gone down today.

[TwelveInchPianist]

I'm told that the destruction of property isn't violence.

[M L]

Yeah this was fact checked I remember.

[Rev. Arthur L. Kirkland]

Get out of your betters' way or get run over, clinger.

I am content either way.

[NoVaNick]

Yes, comrade!

[SimonP]

Not by me.

Do you grasp that there's a fundamental distinction between throwing a rock through a Gucci storefront and invading the Capitol in order to disrupt the orderly transfer of power?

[Rev. Arthur L. Kirkland]

You can't reason with bigotry, superstition, or belligerent ignorance.

In other words, with current Republicans and conservatives.

[VinniUSMC]

"You can’t reason with bigotry, superstition, or belligerent ignorance."

Everyone is well aware that there is no reasoning with you, Artie.

[David Nieporent]

And I imagine that the people found inside the capitol will be charged with simple trespassing or the dc variant thereof.

Is that your expert opinion as someone whose entire knowledge of law is limited to saying the word FERPA in inappropriate circumstances?

[Noscitur a sociis]

Hey there, he drops a "HIPPA" every now and then.

[Nelson Kerr]

Since violence has occurred would it not be insurrection at this point?

[Jon S]

Spray-painting a federal courthouse and invading the office of the Speaker of the House and taking pictures of her email on computers (while still logged in and almost certainly tampering with them) and storming into the floor of the House and Senate, while they are literally debating the counting of votes for the President, are not comparable. At all. Now, both are crimes - but there's kind of a difference.

The response to one was the full weight of federal law enforcement. The response to the other was, uhh, nothing in particular but the President telling the insurrectionists that he "loves" them and they are very "special."

But both sides ...

[Bob from Ohio]

"Spray-painting a federal courthouse"

That's not all they did.

Either you are ignorant or lying?

[Toranth]

Spray painting with gasoline, when the building was occupied, is all.

Just trying to keep the people inside warm, maybe help them save on their heating bills. You know, neighborly like.

[AmosArch]

Since it apparently wasn't relevant to the same people asking this question back when BLM was attacking government buildings across the country a few months ago. I'd say no

[MoreCurious]

You win the award this evening for the stupidist comment and most feeble attempt at false equivalency.

[KevinP]

Have you heard about the endless days of attacks on the Federal Courthouse in Portland? Still going on, by the way.

When you normalize riots, riots become normal.

[Rev. Arthur L. Kirkland]

If you don't be quiet, KevinP, better Americans may choose to refrain from being lenient with you and your nonsense and bigotry.

For your own sake, shut up, clinger.

[NoVaNick]

Go back to your NAMBLA chat rooms fuckface!

[Rev. Arthur L. Kirkland]

Enjoy getting schooled and controlled by your betters, clinger.

Or not. I doubt we will care much about what you prefer much longer.

You will comply. You can cry about it as much as you want. But you will comply. Sucks to be you, clingers.

[jslinner]

Wasn't BLM. It was these same guys from today:

"‘Boogaloo Boi’ charged in fire of Minneapolis police precinct during George Floyd protest"

[Sarcastr0]

Yeah, Prof Volokh corrected me on this one when I thought it was about speech only.

[Darth Chocolate]

What have the Democrats been doing to steal the election?

[Glaucomatose]

Voting.

It's shameful.

[M L]

Why today? Are they bringing charges against antifa?

[Rev. Arthur L. Kirkland]

Open wider, clinger. Your betters have tired of appeasing your bigotry, your ignorance, your backwardness.

[Bored Lawyer]

So you favor politically biased application of the criminal law. Enforce against your political rivals, wink at your political friends.

Not surprising, coming from you. But worth highlighting.

[TwelveInchPianist]

Our betters don't need to be constrained by laws. Laws are for goobers.

[MoreCurious]

Did you win last week's award for stupidity? You're only entitled to one per month.

[Nelson Kerr]

Did Antifa violently attack the US Congress to stop a mandated constitutional process?

[Dan Schiavetta]

Trump was the ringleader. Can he be indicted after Jan. 20?

[Dr. Ed 2]

HOW was he the ringleader? There were four different groups organizing this, and then it grew. Did he say "break windows" or anything?

[MoreCurious]

Asshole. He urged people to come to Washington today and get wild. And he urged today's crowd to march on the Capitol. That's how he was the ringleader. Those are the facts in the real world, even if your fantasy world pretends otherwise.

[Michael P]

So everyone who encouraged attending any protest where violence broke out is a ringleader of the riots that happened?

For example, everyone who encouraged people to protest in Portland (Oregon) is guilty of seditious conspiracy?

[KevinP]

Since endless protesting is a Leftie thing, I could get behind this standard.

Organize a protest? If it turns into a riot, you are responsible.

[M L]

I've been busy all day but yes, it looks as though some people were entering capitol buildings which I assume was trespassing and therefore a form of possessing property.

Naturally, you don't mess with the state. The state can do whatever it wants to you though. Your property and your person and your Three Felonies a Day.

[ipsquire]

Doesn't "conspire to" modify ALL of "overthrow[...]", "levy war [...]", "oppose by force", "by force to prevent [...]", AND "by force to seize [...]"? Given the article title, acts in furtherance seem sufficient to be guilty of conspiring even if nothing much actually happens toward those ends. Speech alone isn't enough, but incitement is always squishy.

[jdgalt1]

It's been true of Antifa/BLM terrorists for years. And they are the ones still at it today. Look.

[jslinner]

Very reputable and credible source. Thank you.

[Ben_]

Seems like that could fit a lot of protests we've seen going back a century. Every protest at the capital. The anti-Brett Kavanaugh antics. Etc.

But this is different! Because you are having an emotional reaction right now.

[Rev. Arthur L. Kirkland]

He's having an emotional reaction.

You're a no-count bigot getting stomped into irrelevance by the liberal-libertarian mainstream.

Everyone has problems. Open wider, bigot, or your problems will escalate.

[Aunt Teefah]

Really? Every protest at the Capitol attempted to achieve its aims "by force"? What "force" was used to oppose Kavanaugh?

This is what happens when your brain is incredibly large, yet also completely smooth. You've somehow deluded yourself into thinking your opponents are motivated by emotion, and you by dispassionate reason, despite having no clue whatsoever as to what you're talking about. Not good, folks.

[Jon S]

You don't remember them breaking into the hearing room during the Kavanaugh hearings? You don't remember the entire Senate Judiciary Committee fleeing? You don't remember a woman who was shot dead during the hearings?

[KevinP]

MSNBC on Twitter: "JUST IN: Anti-Kavanaugh protesters take over the Hart Senate Office Bldg. atrium on Capitol Hill. https://t.co/jCIbxhTKeu

[Ben_]

I don't see in your comment where you proved there was no force.

[Brett Bellmore]

Well, of course the question is, who would the charges be brought against? Whittington seems to assume Trump, but on no basis at all.

I would tend to think that, after all the people attacking federal buildings last year who did NOT get charged with seditious conspiracy, you'd be hard put to even charge the people who DID enter the Capitol buildings with it, let alone anyone outside the building.

[Eric VonSalzen]

Who are the "two or more persons" who conspired to do one or another of these things? Last I heard, a criminal indictment required a named defendant. We may learn more in the next few weeks or months about who decided to break into the Capitol -- if anyone in fact made that decision. Maybe it just happened?

[MoreCurious]

And you're convinced Trump won't be indicted on January 21? Good luck with your wishful thinking.

[Life of Brian]

Yeah, the mob with the guillotine a few months back made it clear enough we're not in Kansas anymore. Spiteful prosecution of He Who Hath Deranged You--rather than just getting on with the next few years of gleeful empire building--seems well within the realm of possibility.

[John F. Carr]

An indictment doesn't need names. In recent years prosecutors have started indicting DNA profiles hoping a name will turn up later.

[ipsquire]

The three dudes with "civil war 1/6/2021" shirts, and others who expressed similar sentiments beyond protest, and arrived armed?

[BMS]

Probably depends on the individual. No doubt some dudes showed up in groups for the stated purpose of disrupting or altering Congress's count. Easy enough to make the showing in those cases. Maybe a different situation for randos who just showed up to protest and decided on the spur of the moment to invade the Capitol.

Your question is why riot laws generally don't have cooperation/agreement as an element, and also why riot may be the more appropriate charge for many of these individuals. There doesn't appear to be a federal statute directed at riots on federal premises other than prisons (correct me if I missed it), and DC's riot act (D.C. Code 22-1322) is shockingly light: mere participants face only 180 days. (People who incited the riot could face up to 10 year since a death resulted.) By contrast, many states provide for felony charges against rioters if someone dies, if they are armed, if they know that other rioters are armed, etc., etc.

More promisingly, at least for some of these rioters, D.C. Code 10-503.16(a) and .18(a) give up to 5 years for unlawful possession of weapons on the Capitol Grounds and for "with force and violence, to enter or to remain upon the floor of either House." Other rioters may be guilty of misdemeanors under .16(b) and .18(b).

18 USC 111 ("forcibly assaults, resists, opposes, impedes, or interferes with [a government employee or officer]") also doesn't require agreement or coordination, and could be relevant. Up to 20 years if by use of deadly or dangerous weapon; up to 8 years if with intent to commit another felony; up to 1 years for simple assault. Similar with 18 USC 351 (assault of member of Congress or attempts) and 18 USC 1751 (assault of VP Pence or VP-elect Harris or attempts).

Bottom line: seditious conspiracy might be right on target for some of these people, but there are plenty of statutes that would apply to more disorganized conduct.

[De Oppresso Liber]

Trump promoted and invited his sycophantic followers to this "event". People have now died as a result, and a constitutionally required duty was delayed and attacked. These people are guilty of sedition, and the president is guilty of murder and sedition.

[MoreCurious]

And don't forget that he urged them to "get wild." Seems they were listening.

[Sidney r finkel]

It is a simple fact that the President of the United States, along with people like Guiliani instigated sedition against the United States. That is not spin, it is not political rhetoric it is a simple declaration of what has observed these past several weeks.

On the plus side, the mob was white. Had they been minorities the police would have shot and killed, how many, oh probably several hundred.

[De Oppresso Liber]

What's crazy is that sources like AP basically read the same way as your comment. This might be the straw that breaks the camel's back on letting Trump have his tantrum. One can hope.

[M L]

"I just don’t even know why there aren’t uprisings all over the country. And maybe there will be."

Nancy Pelosi

“We take an oath to protect and defend the Constitution from all enemies, foreign and domestic. And sadly the domestic enemies to our voting system and our, honoring our Constitution are right [at] 1600 Pennsylvania Avenue with their allies in the Congress of the United States.”

Nancy Pelosi

“It’s really actually shameful. Enemies of the state.”

Nancy Pelosi

"I don't care that much about statues. People will do what they do."

Nancy Pelosi

"If we were in high school, I’d take him behind the gym and beat the hell out of him."

Joe Biden

"You know, there needs to be unrest in the streets for as long as there’s unrest in our lives."

Ayanna Pressley

"No peace, no sleep! No peace, no sleep! … God is on our side! … If you see anybody from that cabinet in a restaurant, in a department store, at a gasoline station, you get out and you create a crowd, and you push back on them, and you tell them they’re not welcome anymore, anywhere."

Maxine Waters

“I don’t know why people take it. I think Americans should be out in the streets screaming to the top of their voice. Do something. Make something happen.”

Maxine Waters

If we start adding quotes from members of CNN, MSNBC, and celebrities it would be much more violent and exceed the character limit . . .

[KevinP]

There are literally thousands of comments from progressive riot supporters during the Summer of Love 2020.

Twitter is forever.

[Rev. Arthur L. Kirkland]

Open wider, bigoted clingers.

The shoving is going to be even more fun from now on.

And you will comply.

[Sidney r finkel]

You are so right. All of those people not only called upon supporters to storm the U. S. capitol, but they also supported a 17 year old idiot to take an automatic rifle and shoot people. They were particularly insistent that their supporters fly the confederate flag.

Oh, wait, that was trump.

[Noscitur a sociis]

So... are you saying they were in the right? Or that this riot was wrong? Or are you just a reciprocal hypocrite?

[M L]

I don't support riots or even trespassing.

However, what we have had this year is massive riots in huge numbers, murder of police officers and others, looting thousands of stores, burning of police precincts and apartment complexes and other things, and billions of dollars in property damage.

Now, today there was a big protest where the ratio of mayhem causers to peaceful protesters was not even in the top 10 or 20 for the year. They probably tore up some drapes, adding a few dollars to the property damage. I haven't heard that the rioters hurt anybody, while they were gassed and one of them (a woman) was shot dead, not with rubber bullets.

[Frog Legs]

The President isn't guilty of murder or sedition. The idea that he's guilty of murder is laughable and belies a fundamental ignorance of the law, and as for the sedition nothing he said is outside the protections of the first amendment.

[Rev. Arthur L. Kirkland]

I agree.

But he may have ensured his convictions for insurance fraud, bank fraud, tax evasion, and similar criminal offenses today.

I doubt better Americans are going to take a 'forgive and forget' approach with Trump and his contemptible, disaffected supporters.

[M L]

How many buildings did they burn down so far? How many police officers and other people did they murder? How many places did they loot? They have a realllly long way to go if they want to keep up on these measurements.

[Rev. Arthur L. Kirkland]

How many months, or perhaps years, of relevance do conservatives have left in America?

[jslinner]

The airlines will always need them to pad flight times between states worth visiting.

[DaivdBehar]

The resistance to the Chinese Communist Party assault on our nation via its agents, the tech billionaires will endure until the Communists are crushed inside our borders. Zero tolerance for PC, for leftist attacks, for the tech billionaire propaganda machine.

Seize their assets in civil forfeiture.

[jslinner]

Didn't Trump counties make up like 30% of GDP or something? Wasn't Trump talking about 2K giveaways, and giving farmers money to defend against commies not buying their soy beans? You guys are some really professional capitalists.

[Armchair Lawyer]

Sad news today.

It appears that law enforcement personnel have shot dead a protestor at the capital. News reports remain unclear, but there are no reports of any weapons being present on the victim.

[jslinner]

So it's a Wednesday. Or a day on a calendar.

[shawn_dude]

Video shows numerous protestors and rioters armed and wearing armor. There's video of police behind barricaded doors in the House chamber (? or Senate) pointing guns at the broken doors as rioters break their way in. That only one person was shot is probably a miracle.

I haven't heard if the woman was a protestor, rioter, bystander, or someone with legitimate business in the capital. But if she was part of the armed mob breaking into the building, I don't know that her being unarmed is that relevant.

[DaivdBehar]

The legislators inside the building were in insurrection against the constitution. They should be rounded up, arrested, tried for an hour, and sentenced to 10 years in federal prison at hard labor. They stole multiple elections, with trucks backing up, dumping still warm, unfolded ballots late at night, in the precise small numbers needed to win.

Republicans must start to update their voting techniques to keep up with these seditious cheaters.

The American people will suffer from this cheating by getting plunged deep into the Venezuela syndrome. Trump should have ordered the Secret Service to protect the patriots from the pro-criminal, Washington Democrat police. They shot an unarmed woman to death. Dissent is being crushed in Hong Kong and in Washington. Americans cannot criticize the Chinese Communist Party for its human rights abuses after the shameful attack on democracy by the Democrat Party.

[not guilty]

How is the violence in any way attributable to the ¨Democrat Party¨?

[starlord1988]

I wouldn't say it is seditious. It breaks trespassing and probably many other laws, but I do not see it being seditious.

[shawn_dude]

The quoted piece from the law emphasized in the OP:

"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"

Force? Check. Obviously there's force being used when you drive the joint Congress out of their own building.
Seize, take, or possess? Check. Plenty of video showing this.
Property of the US? Check. Capital building.
Contrary to the authority thereof? Check. If you force the "authority" to flee for their safety, I'd call that "contrary to the authority thereof."

Since that's the legal definition of sedition, why do you think this *isn't* sedition?

[The Turtle Dove]

"...by force to seize, take, or possess any property of the United States contrary to the authority thereof."

If I'm trespassing, but I make no effort to exclude others from the property on which I am trespassing, have I seized, taken, or possessed the property?

Seems more appropriate to people taking over forts on the Mississippi in anticipation of war with Spain than a few hundred beered-up Jacksonians parading through the People's House.

The way that we understand these events will determine the way that society hardens against them. I remember times when I could wander the building, sitting in empty committee rooms, while on a long layover at Union Station.

"Careful the tale you tell -- that is the spell."

Mr. D.

[shawn_dude]

"make no effort to exclude others" totally explains why Congress had to flee their own chambers. They weren't "excluded" just, you know, frightened for their lives.

[Kenneth Almquist]

The members of Congress left the building for safety reasons and the certification of the election results was blocked. I think that a reasonable case can be made that the protesters who entered the building took possession of the property. The main reason why I would hesitate to charge them with seditious conspiracy is the ineffectiveness of their efforts. The goal of the protesters appears to have been to prevent the peaceful transfer of power to the duly elected President as specified in the Constitution, but I don't think they came anywhere near achieving that goal. I think that criminal charges should reflect what they actually did or had a reasonable chance of doing, and a sedition charge seems like overkill.

[Tilted]

What do we make the odds that President Trump issues a pardon for anyone who might have committed a federal crime in the proximity of the Capital today?

[shawn_dude]

Does Trump have more to gain from a pardon or more to gain from the government trying to identify, arrest, and try the rioters that forced Congress out of their building?
I think the latter. Trials and the news coverage that comes with it would help keep his cult energized after he leaves office and keep his donations coming in and his political power relevant.

[John F. Carr]

The law covers everything from low grade street crime without any political motive to setting off a nuke in Washington.

[Commenter_XY]

Professor Adler, I don't suppose an answer here is that rioters might indeed be guilty of seditious conspiracy, but the law itself is unconstitutional because it is overly broad....

[James K. Polk]

The difficulty I see is that you'd need to prove that they *conspired* to seize the building as opposed to just doing it on the spur of the moment. It's possible, especially if there are confessions.

I don't like the law, I'd prefer to see people judged on their own individual actions.

[Mesoman]

So how does intent fit in all of this?

For example, if some had the intent to present a case to Congress, is it sedition if they break down a door to do so (not that I'd say they were smart or right to do so, of course)?

If they went along with mob psychology, is it sedition?

Or does there need to be some intent to impede the actions of government, as opposed to taking action which just happens to impede it?

[David Lawson]

It is seditious conspiracy because their stated intent was to block the tabulation of electoral college votes.

[Martinned]

Better question: What is insurrection?

No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

https://balkin.blogspot.com/2021/01/insurrection.html

[Michael P]

insurrection, n. - a violent uprising against an authority or government.

That sounds like a lot of protests this summer, which were egged on and explicitly supported by Democrats, and where Democrats occasionally went so far as to participate first-hand. You have hit upon a brilliant idea to restore the smarter party to control of both houses of Congress.

[Martinned]

Here is former president Bush using the "i word" repeatedly to describe today's events: https://twitter.com/Acosta/status/1346955257818079239

[mydisplayname]

The provision is as relevant today as it was for the past year. The provision is as relevant to property in Washington, DC, as it was for property in Seattle, Washington.

Where was the advocacy last year?

[David Lawson]

I don't see why commentators with nothing to add of any relevance, especially verbal harassment, are suffered to participate.

This is a serious issue affecting our democracy and I'd like to come to the comment stream for serious discussion.

For my part, I agree he should be impeached, removed, and prevented from running again. I believe I proposed this during the post-election crap he pulled.

As a libertarian, I'm not looking forward to undivided govt. That's how we got the Patriot Act and so-called "Obamacare".

[David Lawson]

Oops forgot to specify commenter Kirkland.

[BMS]

Here's a question: what are the sentencing guidelines for seditious conspiracy? The SG doesn't have a section for seditious conspiracy, so you have to look to analogous statutes. There's a Second Circuit case that upheld a sentence that was based on the guidelines for treason, but that depended on a characterization of the defendants' activities as tantamount to war. (It was the blind sheikh's case: the WTC bombing and related acts. Notably, the treason guidelines lead to a maximum sentence for seditious conspiracy, no matter what the defendant's priors.) I think the Government could make an argument along the same lines here, but there may be more closely analogous guidelines -- maybe obstruction of justice or riot or something else. Curious if people with federal criminal experience have thoughts.

[John F. Carr]

The judge has wide latitude depending on whether the charge is treated as conspiracy to commit trespass, burglary (breaking and entering with intent to commit a crime), battery, obstruction of something or other, terrorism, and so on. Terrorism is another crime that tends to lead to a statutory maximum sentence.