Will There Be Seditious Conspiracy Charges Against Those Who Stormed the Capitol?

Acting AG Rosen has put seditious conspiracy charges on the table before. Will he now?

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In September, then-Deputy Attorney General said the Department of Justice should consider filing seditious conspiracy charges against rioters and violent protestors who attacked federal buildings or federal agents during protests in multiple U.S. cities. From the New York Times report:

The deputy attorney general, Jeffrey A. Rosen, said in an email to federal prosecutors that they should consider use of the sedition statute and other federal laws to try to stop violence at protests this summer — even in instances where local law enforcement would typically bring charges. . . .

"The attorney general and I recently discussed with you the need to consider the use of a variety of federal charges when they may be appropriate, including seditious conspiracy," Mr. Rosen wrote.

Their push for prosecutors to consider sedition was proper and that prosecutors did not need evidence of a plot to overthrow the government to consider and bring charges under the statute, "despite what the name might suggest," Mr. Rosen wrote. . . .

"Critics of the inclusion of Section 2384 in a list of available statutes appear not to have read beyond the section's title," Mr. Rosen wrote, citing the portion of the federal code containing the law. "Those who have actually read the statute recognize that the text of Section 2384 could potentially apply to some of the violent acts that have occurred."

As I noted yesterday, Rosen (who is now Acting Attorney General) is correct about the scope of Section 2384. Further, the text of this provision would seem to be no less applicable to some of yesterday's events than to some of 2020's riots and assaults on federal buildings.

Will the Justice Department pursue such charges against those who organized, encouraged, and participated in storming the nation's Capitol? In a statement yesterday, Acting AG Rosen said "The violence at our Nation's Capitol Building is an intolerable attack on a fundamental institution of our democracy." If so, it would seem Section 2384 should apply to at least some of the individuals involved.

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  1. I think at this point it would be difficult to file such charges against one of those groups and not the other. But I don’t think such charges were ever actually filed against BLM/Antifa demonstrators, were they? So despite the Conspirators’ dudgeon against white working class conservatives, I doubt that such charges will be filed against the DC protesters.

    1. I had the same reaction. The BLM riots were awful but they also met the definition of the cited laws. Prosecutors and pundits have discretion. But having exercised that discretion to decide that those were “acceptable” political protests, it seems hypocritical to hold the other side the of the political debate to a different standard.

    2. That’s my view, too. After filing no such charges all last year, when you had organized bands literally trying to set federal buildings on fire while people were in them, you’re going to do it for this? I don’t see how that works.

      But I’m pretty sure this talk will go away pretty quickly when they realize they can’t pin the riot on Trump. Or worse, if investigating the ring leaders leads away from him…

    3. ” Conspirators’ dudgeon against white working class conservatives”

      That’s it in a nutshell — the political elite, including lawyers, fear the white working class conservatives in a way they don’t the trust funders that make up Antifa

      1. Except that very few of the putschists were working class. Hint: working people can’t just take off on a Wednesday to go to D.C. As has always been the case, most of Trump’s hardcore supporters are petty bourgeois – owners of the local jet ski dealership and other similarly pointless jobs with more money than sense. Rich boomers who adopt a working class aesthetic.

        1. My argument retains its force if you change the words to “white middle class conservatives.” Owner of small businesses are no more than middle class.

    4. “it would be difficult to file such charges against one of those groups and not the other”

      Lol. Come on. Don’t you read and watch the media? One of these groups consists of angels from heaven who merely want equality and justice for all, and the other consists of treasonous traitors trying to end democracy and impose white supremacist fascism on the entire world.

      You really think there will be any qualms about treating them completely differently? They’ve ALREADY been treated in completely opposite fashions. The only place one sees calls for them to be treated the same are the fever swamps of comments sections in libertarian magazines. I’ve no doubt you are going to see serious jail terms for some of yesterday’s protestors.

      1. There are “Four Dead In DC” — it’s my generation’s Kent State and while I would not be at all surprised to see the Bite Her Arse administration be stupid enough to bring criminal prosecutions, the consequences will be about the same as it was for Richard Nixon.

        This isn’t even about Donald Trump anymore — and I think he realized that yesterday. We’re here, we’re mad, and we want our country back!

        https://www.youtube.com/watch?v=YX95QSKBODo

        1. “while I would not be at all surprised to see the Bite Her Arse administration be stupid enough to bring criminal prosecutions”

          I don’t know what the Bite Her Arse administration is (Biden?).

          But the prosecutions will be commencing IMMEDIATELY. Under THIS administration. THAT’S the double standard — when the Left riots, the prosecutors will generally not bring charges at all (or, at most, there will some misdemeanor charges that will later be quietly dropped). When the Pro-Trumpers riot, they are going to be charged BY THE ADMINSTRATION THEY SUPPORT.

          There are two completely different universes for these respective riots.

          1. I agree. Extreme, outlandish double standards is par for the course with this type of thing and has been for a while.

          2. Gee, if you believe the Conspirators, the Trump administration picked up random people on the streets of Portland and detained them indefinitely without trial.

    5. There are reports that Antifa and BLM were involved in breaking the windows and escalating what was an otherwise peaceful protest.

      The media reports are putting the entire blame on the trump supporters, though there are several reports of antifa / blm were actively involved in riots.

      It is well known that trump supporters dont have a history of violence where as antifa and BLM do have a long well know history or violence.

      Lets sort out the facts before we jump to conclusions.

      1. It appears we have unanimity in Hillbilly Hollow with respect to assessment of this legal issue.

      2. Good news, Joe: you don’t have to worry about what organization people were affiliated with when they forced their way past barricades, smashed windows and broke into the Capitol. So you can continue to believe that they were double-secret undercover BLM activists wearing MAGA hats to make Trump supporters look bad, and I can continue to believe they were who they claimed and appeared to be, and they can go to jail while we figure it out.

        1. https://twitter.com/ClimateAudit/status/1347071721954803712

          video of antifa breaking window with maga supporter stopping the antifa .

        2. https://twitter.com/ClimateAudit/status/1347211331976441856

          here is photo of another antifa individual involved into capitol hill protest – not exactly a maga type guy

          1. Whooooooooosh

          2. Jake Angeli. Famous Q crackpot and Trump supporter. Next you’ll be claiming that Giuliani, Powell, and Ellis, aka the Elite Legal Strikeforce, are all antifa.

      3. Yeah, but do the DOJ or the Capitol police have any interest in following up such leads? If they do now, they won’t 13 days from now.

        That’s why I said that, if there weren’t arrests and prosecutions, it was likely a false flag operation. Because they’ll only go after these guys if they can hang the blame on Trump, if the trail leads elsewhere they’ll stop following it.

        1. “False flag.”

          Psychotic.

          1. Time to stop gracing these traitorous morons with our attention.

        2. Yeah, but do the DOJ or the Capitol police have any interest in following up such leads? If they do now, they won’t 13 days from now.

          That’s why I said that, if there weren’t arrests and prosecutions, it was likely a false flag operation. Because they’ll only go after these guys if they can hang the blame on Trump, if the trail leads elsewhere they’ll stop following it.

          That’s some genuine paranoid thinking. Trump is plenty self-centered, but to believe that he wants to pin blame on Trump is not, uh, rational at all.

      4. I wouldn’t be at all surprised to learn they were on the FBI payroll.

      5. “It is well known that trump supporters dont have a history of violence”

        This would certainly be news to many of their wives.

        1. Truth. There has been study after study of the noted correlation of possessing “dark personality” traits and voting for Trump. When they seem like a movement made up exclusively of assholes, it’s because they are.

      6. There are reports that the world is actually being run by Lizard people.

        I put the same weight on those reports.

        As to your two videos, the first shows a bunch of Trump supporters breaking in and someone yelling something about a person being antifa. How would they possibly know? Can they read minds to reveal the secret identities of other protestors? And how brave would that antifa person need to be to go to the forefront of a Trump mob and rile things up, if they were antifa and outed they would be in serious physical jeopardy.

        And crazy shirtless guy is a “Qanon Shaman“. Most definitely NOT Antifa or BLM.

        1. The first video also shows the crowd spontaneously cheering when someone bodily drags down the person trying to break the window. Unless we find out who that window-breaker was, we may never know whether they really were aligned with Antifa — but we can easily see that the crowd was strongly and overwhelmingly opposed to what they were doing.

          You seem to think that a generic Trump crowd is as dangerous to people who disagree with them as a generic Antifa crowd, which is not supported by evidence.

          1. There is absolutely NO EVIDENCE that anyone there was Antifa.

            All you have is a video of a crowd of divided Trump supporters.

            Some of the mob wants to break into the capitol, other parts of the mob want to stay outside and they’re shouting “antifa” as a way to turn people against the more aggressive faction.

            In that video the less aggressive faction won out, but as we clearly see that did not last.

            As to the “dangerous” statement. I wouldn’t want to be a MAGA provocateur exposed in the most militant part of a BLM protest either. I don’t think people do that.

            There’s some evidence that Proud Boys and others tried to play false flag in BLM protests, but they did it in distinct groups and it’s unclear that they actually accomplished anything. There’s no evidence that BLM or antifa has trying to do the same to Trump’s march, just some posters made up by MAGA folks.

            1. I mean, these people are robotic in their responses. It is a trivial flowchart – when caught, claim it was the “other team”.

              It is just like how it is never time to legislate about guns after large mass shootings, but always time to legislate away freedom and privacy after brown-skinned terrorism.

              Don’t waste your breath on bad-faith arguments.

          2. “we can easily see that the crowd was strongly and overwhelmingly opposed to what they were doing.”

            Why, when the window was broken, they rushed inside to sweep up the broken glass. That’s what you can easily see.

      7. “It is well known that trump supporters dont have a history of violence”

        The Proud Boys’ DC hangout closed for a couple of days, to keep their staff safe.

        It’s well-known that Trump supporters don’t have a firm grasp on reality.

    6. Though it may pain lawyers to hear, you shouldn’t expect fairness in our legal system. BLM is endorsed by our elected officials and their riots are in vogue. If Trump supporters are involved, they get the book thrown at them.

      Welcome to the world of critical legal studies.

      1. “Welcome to the world of critical legal studies.”

        Starting by being critical of you. This was a riot directly endorsed by the President of the United States, created because he and they are unhappy that they aren’t the majority of voters.

  2. Man you guys are really hopping mad about this. Where was all this righteous fury when far more people (other than the protestors) died and far more violence and destruction was going on a couple months ago? Did a Magahat wearer touch your mashed potatoes when you were a kid?

    1. That thuggery was aimed at you, which makes it acceptable. This hit a tad bit to close to them.

          1. 2?

            (not sure where that was supposed to go 🙂 )

            1. Bragging about IQ score?
              just a guess.

    2. I’m curious, are you not aware of all of Trump’s comments about coming down hard on BLM protesters? If you’d like to look silly I could, of course, produce them. But maybe you’d like to ‘get ahead’ of that and say ‘well, Trump is being really inconsistent here!’?

      1. Once they destroy and kill 1/10th as much as the Dem riots I’d have no problem cracking down on it.

        1. See you on January 20, clinger. Stock up on hankies, lollipops, and binkies.

            1. The keyboard warrior speaketh.
              He’d back up his words, if he could walk.

      2. He apparently wanted to, but did it happen? Nope.

        1. So his comments were hypocritical, right (I can reproduce them, of course, if you’d like)?

        2. “He apparently wanted to, but did it happen? Nope.”

          Story of Trump’s incompetent administration.

      3. What Trump said about the BLM/Antifa riots doesn’t matter. It’s what he did that counts.

        And what he did was nothing.

        1. I recall priests and protestors and Australian news crews alike being beaten and gassed out of their own church for Trump’s infamous upside-down Bible photo op.

        2. “And what he did was nothing.”

          Not counting the federales in unmarked cars patrolling the streets of Portland.

          And, when the criticism that he was hiding in a bunker under the White House stung, he suddenly needed a photo op across the street, so they cleared the streets of lawful protestors so he could go across the street, and be photographically proven to be unfamiliar with a Bible.

      4. I agree that Trump has been inconsistent on this.

        Not remotely as inconsistent as Pelosi, the media, and everyone else who suddenly has hair on fire about a tiny fraction of a large peaceful protest turning illegal by trespassing.

        But still, inconsistent.

        1. “I agree that Trump has been inconsistent on this. ”

          Trump has been entirely consistent. Donald Trump is in favor of anything that benefits Donald Trump. Period.

    3. Would prosecutoral discretion extend to only charging White people or could one make a racial discrimination complaint out of that?

      1. Guess we’ll have to see if any non-whites showed up to help Trump overthrow the government.

  3. The Democratic Congress should add the felony murder doctrine to this. If someone can be charged for murder when someone dies during a bank robbery, they should be charged for storming the capitol.

    1. Except the lady was martyred for liberty, and by Democrat enforcers using excessive force. She is the George Floyd of freedom. Her estate should be paid $12 million.

      1. Yeah, all Capitol police are ‘Democrat enforcers.’
        Try again Komrade.

      2. And unlike Floyd, she probably didn’t shove a gun into a pregnant woman’s stomach. Floyd is a piece of garbage and the world is better off with him in the ground. Same for Thugvon Martin, the “gentle giant” Michael Brown, Rayshard Brooks, and the rest of the subhuman savages.

        1. “OK, so we’re back to where it’s cool to shoot unarmed protestors? Just checking.”

          Twelve inch? Twelve inch? (checks mich). Is this on?

          1. It’s not cool to kneel on people’s necks. I’ve never said otherwise.

      3. She died a traitor and a disgrace. She attacked the US Capital and she got what she should have expected.

        1. What do you think of the Hong Kong freedom fighters who stormed the Parliament? I see the analogy.

          Democrat party is similar to the Chinese Communist Party, just has a slicker lawyer veneer. Democrats call it regulation.

        2. She took an oath to defend the constitution, too. And forsook it in her dying act. And all for being duped by an obvious charlatan. What a shame.

      4. I’m wondering if she was working for the FBI and the officer didn’t get the memo.

        It *would* make sense to have people inside a movement like this to listen for talk of assassinations, and we do know the FBI’s track history with this sort of thing.

        1. the smart move is to ignore all the talk by people incapable of following through on their tough Internet talk.

    2. OK, so we’re back to where it’s cool to shoot unarmed protestors? Just checking.

  4. Simply demonstrate the essential element of conspiring the specific efforts “by force to seize, take, or possess” the Capitol.

    In places like Portland, you had repeated similar actions, where it was pretty obvious that people planning to show up with the same gear to the next night’s protest could expect similar actions to the previous night’s protest. Is there anything like that here?

    1. Is evidence of a group violently entering the building to the point that the Members of Congress had to be evacuated enough?

      https://compote.slate.com/images/f2a3f0e7-e897-4825-8ea3-8b98aa3f7fa1.jpeg?width=780&height=520&rect=1560×1040&offset=0x0

      1. No, because that says nothing about the elements of conspiracy.

        1. You learned the law of conspiracy different than I did if taking overt action to further the goals of the conspiracy is unrelated to the elements of conspiracy.

      2. Specifically, there are four elements that must be proven for federal criminal conspiracy charges: https://www.bajokalaw.com/conspiracy/2020/7/24/the-four-elements-required-for-criminal-conspiracy-charge . You have shown only the last one.

        1. This statute actually doesn’t require on overt act, just the agreement. And these treasonous buffoons have been talking about their plan online for weeks. (Only including one link due to the Reason comment system.)

          https://mobile.twitter.com/pdmcleod/status/1345123867673702401

      3. They walked in the front door…

        1. Through the window.

  5. “They’re not going to stop. They’re not going to stop. They’re not. This is a movement. I’m telling you. They’re not going to stop, and everyone, beware. Because they’re not going to stop. They’re not going to stop before election day in November, and they are not going to stop after election day. And everyone should take note of that on both levels. That they’re not going to let up. And they should not, and we should not.”

    -Kamala Harris, supporting continued protests that led to billions in damages and many lives lost.

    1. Three days after BLM protests lead to two cops being shot in Louisville

      “Nothing that we have achieved that has been about progress, in particular around civil rights, has come without a fight, and so I always am going to interpret these protests as an essential component of evolution in our country – ”

      Imagine if Trump said similar words now….

      “Nothing that we have achieved that has been about progress has come without a fight, and so I always am going to interpret these protests as an essential component of evolution in our country”

      What would the response be?

      1. Trump said worse words, yesterday, while the riot was still happening.

      2. “Three days after BLM protests lead to two cops being shot in Louisville”

        Now point out how many times Ms. Harris, or anyone else, suggested that shooting cops was an appropriate act of protest.

        Here, I’ll do it for you:

        1.

    2. Armchair — should we impeach Kamala Harris as well?

      1. Impeach her for the temerity to gather more votes that your guy got?

  6. Will the Justice Department pursue such charges against those who organized, encouraged, and participated in storming the nation’s Capitol?

    Is there any reason to think that *anyone* organized it? It looks more like something that just happened spontaneously. (Looking at the question from the viewpoint of cui bono, I’d imagine that if anyone organized it, it would have been agents provocateurs seeded in the crowd.)

    1. No, there were people actively discussing the best ways to evade the police and get in, and avtively directing people. That’s more than enough organization for it to be organized.

      1. Yes, but by whom?
        My money is on Antifa…

        1. Antifa are the left’s public fist. There’s no reason they can’t have other branches of their informal military.

          1. You guys are so fucking stupid. There is really is nothing else to say. There is no way to politely put it. Sorry, not sorry.

            Brett, good luck with your health.

            I hope you can recover so you can die along time from now as a sane man with rational understanding.

            1. the first step of overcoming a problem is admitting you have it. I don’t see Brett on the road to recovery any time soon.

      2. “That’s more than enough organization for it to be organized.”

        This was a Trump op. So, that strongly suggests disorganization and ineptitude.

    2. I suspect that Adler is referring to prosecuting Trump. Nothing says rule of law better than conducting lawfare!

      1. Just because he’s actually guilty of crimes is no reason to prosecute him!

  7. Dr. Ed 2 made a superb analogy: Kent State. Sit in protest met with over reacting lethal force by Democrat thugs.

    My analogy: Hong Kong protest against Chinese Communist Party tyranny.

    The Mueller investigation was sedition, to overturn the 2016 election.

    1. Mueller uncovered a lot more than sedition. Mueller uncovered straight up treason!

      Of course Trump’s roadie Barr was right there to muddy the waters, and Romney is the only Republican with a set of testicles.

      1. The Mueller investigation itself was sedition. It was lawyer nitpicking to overturn the 2016 election. I supported the arrest of Mueller and of his lawyers for insurrection.

        1. “nitpicking to overturn the 2016 election.”

          I suppose it’s nitpicking to point out that nothing Mueller did, nor the impeachment trial that followed, had any possibility of overturning the 2016 election.
          Had the Senate voted to convict, Hillary would still not be President now (though maybe she would have been next month). removing Trump from the Presidency early would have promoted Pence to the job. Perhaps then they’d be celebrating his re-election to the job, instead of trying to steal the election from Mr. Biden.

          Trump lost the job. boo-hoo, Trumpistas. Go home and cry alone.

      2. No point in talking to it.

  8. Yes, they should file charges against the people who organized the Capital break-in and stole and damaged property.

    And I am not against similar charges for the most aggregious behavior against the Oregon courthouse either. People who attempted to do things like firebombs should also get sefitious conspiracy charges.

    1. How about the protesters of Hong Kong? Thank you for the viewpoint of the Chinese Communist Party, and its agents, the US Democrat Party.

    2. How about charges against the clearly incompetent police leadership that led to this clusterf**k? There were what — a dozen or so *different* police entities there with neither a uniform chain of command nor unified command & control.

      THAT’s what happened…

      1. I thought you’d be pleased to see white protestors getting the friendly treatment when black protestors didn’t?

        1. How many Black protesters were fatally shot at point blank range?

          1. Dr. Erectile-dysfunction, what do you think the black protestors were protesting?

    3. “And I am not against similar charges for the most aggregious behavior against the Oregon courthouse either.”

      How about the egregious behavior out at the Oregon bird sanctuary? That case only resulted in one loony protestor getting shot, too.

  9. Will vengeance and oppression continue to decide what happens? Then yes, probably Seditious Conspiracy changes.

    Or will people decide to stand down and be Americans. If they choose that, then no Seditious Conspiracy charges.

    1. Your betters are disinclined to value your pointers on ‘being American,’ Ben, because you are a no-count, replacement-ready, right-wing loser. Bigots don’t get much say in real America anymore. Get out of the way or get steamrolled.

      Your Volokh Conspirators can’t help you now. They’re comfortable in nice mainstream offices, often with a direct line to the taxpayer teat. They’ll lather up the rubes, sure . . . but they will stop taking your calls, call security, and disclaim everything at the first sign you actually took their movement conservativism solidarity seriously.

      The Federalist Society uses the hillbillies. But don’t blame the FedSocs too much. What other choice do the Republicans have in modern America?

      1. Kirkland, you saw what other choices Republicans have == in a march bigger than that of MLK2.

        1. Republicans get to whine and whimper, rail and flail, mutter and sputter, and even cry as much as they wish, but that is all they have.

          That, and compliance with the preferences of better people.

          So toe the line, clingers. Or you will wish you had. Better Americans will see to it. Culture wars have consequences.

        2. How many people do you think were there?

          1. It was the biggest crowd in the history of ever, not counting the Trump inauguration crowd.

      2. This is deeply insulting and unnecessarily inflammatory, but also very true.

    2. We are Americans. In America, people who commit crimes get prosecuted for those crimes.

      1. And overcharged, and locked away for decades! That’s the American Way!

      2. But only if we disagree with their message

      3. ” In America, people who commit crimes get prosecuted for those crimes.”

        Unless the President intercedes and actually makes the Justice Department drop the case or issues a pardon.
        but we learned from Nixon that it’s OK when the President does it.

    3. “Will vengeance and oppression continue to decide what happens?”

      Lol, Trump and his allies such as Ben constantly spreading the meme of voter oppression the past few months….

      1. there was blatant bias in last year’s elections: They actually counted ballots that indicated a vote for Biden as if it was worth exactly the same as a vote for Trump which isn’t fair because there were WAY more Biden voters than Trump voters.

    4. “Or will people decide to stand down and be Americans. If they choose that, then no Seditious Conspiracy charges.”

      So, we should let criminals be criminal because they’re American criminals?

  10. YES.

    Sedition charges should be filed against yesterday’s rioters EXACTLY TO THE SAME EXTENT as sedition charges were filed against the BLM and Antifa rioters. No more, no less.

    Perhaps Prof Adler can assist on this one: exactly how many BLM/Antifa rioters have been charged with sedition? Can he please point me to the information about all the (many, many, I’m sure) BLM and Antifa protesters that were thus charged?

    1. Meanwhile, notwithstanding those (many, many, I’m sure) BLM and Antifa protesters that were charged with sedition, the cause they support – BLM – also got showered with $10billion in corporate donations after their (93% peaceful) riots.

      Who will be the first corporation to step up to their obligation to financially support the cause of yesterday’s rioters?

      1. Cry more, Al S. We need entertainment for a lead-in to Inauguration Day.

      2. “Who will be the first corporation to step up to their obligation to financially support the cause of yesterday’s rioters?”

        Catheters for all the insurrection protestors. Maybe a MyPillow for some of them.
        And the title sponsor… could be Reynolds Wrap. Don’t go to the delusion convention without it!

      3. BLM – also got showered with $10billion in corporate donations

        I see that we’re in the “make things up” portion of the evening’s program.

        Who will be the first corporation to step up to their obligation to financially support the cause of yesterday’s rioters?

        Maybe “don’t shoot black people” — BLM’s cause — is perceived as more legitimate a cause than “don’t count black people’s votes” — Wednesday’s rioters’ cause?

    2. Yeah because a handful of broken windows and a couple burned cars over 4 MONTHS of protesting is totally equivalent to an attempted coup against the government where armed insurgents attempted to seize the capital building.

      Anyone trying to equate BLM with this act of war is either an imbecile, a bigot, a traitor or all three.

      1. “a handful of broken windows and a couple burned cars”

        93% peaceful!

      2. ARMED?!?

        Any scintilla of evidence?

        1. There were people in the crowd open-carrying, Ed.

          1. A comment on the Internet doesn’t actually constitute evidence. Surely, with all the videos and still photos captured of the people who invaded the Capitol, someone has a picture of the “armed insurgents” who “attempted to seize the capital building”.

            Or maybe they don’t, which is why they loose their bowels upon the Internet instead.

            1. And the gun-fetishists keep claiming anyone who doesn’t agree with them is afraid of guns!

      3. This. It is sedition because it was intentional interference with constitutionally mandated duties. This was a direct attack on our Republic, which the cultists all seem to be carefully tip toeing around.

      4. “Anyone trying to equate BLM with this act of war is either an imbecile, a bigot, a traitor or all three.”

        Seems right. The BLM riots included many murders, including of police officers, countless vicious assaults and gang beatings. Meanwhile in this event it appears the protesters and rioters didn’t hurt a soul.

        The BLM riots caused billions in property damage, burned down police precincts and apartment complexes, and looted thousands of stores. While this event maybe broke a few windows and tore a few drapes.

        So yes anyone equating these is a fool.

        1. “Seems right. The BLM riots included many murders, including of police officers, countless vicious assaults and gang beatings. Meanwhile in this event it appears the protesters and rioters didn’t hurt a soul. ”

          Bet you wish you could have this one back, now that we know the actual body count includes multiple people, including a capitol police officer.

    3. Did BLM also interfere with Congress doing its job?

      1. The Kavanaugh protestors probably delayed the confirmation a lot longer than these guys delayed the certification.

    4. “Perhaps Prof Adler can assist on this one: exactly how many BLM/Antifa rioters have been charged with sedition?”

      Approximately the same number of BLM protestors who were guilty of sedition. Now, if you’d prefer to charge them with crimes they’re guilty of, the correct charge for rioters is… riot.

      Here’s some information about arrests rather than prosecutions:

      https://www.businessinsider.com/number-of-arrests-capitol-riot-compared-blm-protests-chart-2021-1

  11. Forcibly taking over the US Capitol building could, in my opinion, be described as “levying War against” the United states. Charge them with treason.

    1. Treason only applies to people who owe allegiance to the United States. Nobody owes allegiance to the United States, as currently existing.

      1. Remember to *double fold* your tin foil hat, lest they get in!

    2. Did you recently suffer a tramatic brain injury? My condolences.

      1. Bob, would you please stop insulting the people of Ohio with your novelty account’s ham handed impression of a midwest dumb fuck bumpkin?

    3. Just call it insurrection and ban them from holding office again under section 3 of the 14th Amendment.

  12. I think we all know the answer here. The bald hypocrisy which is being shown between this event of civil disobedience and how it is being treated compared to more violent, more lawless BLM evens is beyond the pale. The difference is the political elite deemed the BLM events to be “acceptable” in nature.

    Now that video is widespread on the internet, people are waking up to seeing much less of a “coup” or “insurrection” and some more akin to a college sit in. Say what you want about civil disobedience, but as far as disruption of normal affairs goes this is going to be put in the history books as a mild one.

    Go ahead and throw the book at Capital Occupiers and continue to fan the flames.

    1. I just realized something Jimmy — no spray paint.

      No slogans painted on the walls.

      1. I thought YOU were supposed to bring the spray paint. Being poorly-planned doesn’t mean they weren’t there to overthrow the government.

    2. Could the time and place matter? Nah, don’t retreat Jimmy, RELOAD!

      1. Charge that machine-gun nest!

  13. If you think you can get charges of sedition to stick for the 90+% of Congress that has been actively at war against the People and the Constitution – spying on us, warmongering, profiteering from the warmongering, theft of property, passage of laws that are direct and intentional violations of our economic and political liberty – I’m all for it.

    Somehow I don’t think its gonna happen though

  14. Seditions Conspiracy? For a mostly peaceful, festival-like act of civil disobedience at the Capitol, similar to what college students do in University President’s offices every day?

    They probably should be charged, and we should probably crack down on other violent and disruptive forms of expression as well. But I don’t have a lot of confidence in our ability to do that even-handedly.

    1. When tu quoque becomes a philosophy…

      1. “Just because we did it and didn’t get punished doesn’t give you the right to do it and not get punished.”

        1. 12: since they got away with it, we deserve it!

        2. https://www.justice.gov/usao-or/pr/22-arrested-facing-federal-charges-after-weekend-protest-federal-courthouse-portland

          Who got away with it?

          Decide if you are on the side of the constitution, or on the side of the Trump cult. There is no fence sitting.

          1. If you’re dragging Portland into it, don’t forget the federales driving around in unmarked cars, grabbing people off the street but then somehow forgetting to bring them in for booking.

    2. “mostly peaceful, festival-like act of civil disobedience”

      I looked at pictures of the so called “sacking” after work, other than the broken windows and doors at some entry points, there was less trash and destruction than at a Tamp Rays home game.

      Mostly people milling around, taking selfies and acting like fools.

      1. Q: ‘How many conservatives does it take to win a culture war in America?

        A: ‘We will never know, because in America our bigots don’t win.’

      2. Watching the video showed that the “rampaging mob” was quite respectful to velvet ropes, and stayed inside them. They were not quite so respectful to US flags, which were taken down and dragged on the ground. there was at least one damfool who took his Confederate battle flag to the capitol with him.

      3. “, there was less trash and destruction than at a Tamp Rays home game.”

        Do people go to Rays games?

  15. Gee, I wonder how this would have played out if the protesters had just gone downtown and burned down a few businesses.
    What then from the socialists, the book of faces, and the twit?

    1. Or went to the MLK monument and just tore it down…

      1. How telling that you compare an MLK monument to statues of Nathan Bedford Ford.

        1. How dare he compare one statue to another.

  16. It’s interesting from the comments here that the conservative movement has become basically a big tu quoque thing. There are no conservative principles, they just wait around for what the ‘libs’ do and then argue they must do the same.

    Edmund Burke is not rolling around in his grave, he’s twerking.

    1. The protest has been roundly and blanket condemned from the majority of the Republican establishment despite the fact that it was really one big incident out of a gigantic crowd of actually peaceful protest. The same cannot be said of Dems for the BLM riots which make this look like a Sunday picnic.

      1. There’s one.

    2. “It’s interesting from the comments here that the conservative movement has become basically a big tu quoque thing.”

      It’s not a “tu quoque” thing. I don’t side with either group, and I think both groups should be dealt with harshly for acts of vandalism, trespassing, and the like. But if you tolerate such acts from one side, it becomes more difficult to punish them when they come from the other side.

      That’s the bind that you, the left, and the news media have put us in with your lack of response to the BLM/Antifa violence. Thank you, Queen.

      1. “I don’t side with either group, and I think both groups should be dealt with harshly for acts of vandalism, trespassing, and the like. But if you tolerate such acts from one side, it becomes more difficult to punish them when they come from the other side.”

        100% accurate.

      2. So, you’ve had your moral agency taken away from you because ‘the news media’ (not the most popular one, Fox, I guess) didn’t respond to BLM violence the way you’d like?

        1. Leading Democrats, including those with chyrons, along with state and local prosecutors, made it very clear that they tacitly and/or explicitly endorsed the kind of violent crime that characterized so many BLM protests.

          For some reason, they never expected their political opponents to use the same tactics they endorsed.

          1. And yet, in all of these “tacit endorsements” I can’t find anything so inflammatory and encouraging to violence as Rudy’s demand for “Trial by Combat!” or Trump’s encouragement to “March on the Capitol!” or “Take what is ours” or “We have to fight!” moments before his cult mob did, in fact, commit sedition in the manner Trump had just described.

        2. “So, you’ve had your moral agency taken away from you because ‘the news media’”

          In a way, yes. If we prosecute MAGA but not Antifa, many people will rightly suspect that the MAGA folks were targeted for their political views.

          I think both groups should be prosecuted. But by tolerating vandalism, trespass, and yes, seditious conspiracy on the left, you’ve deprived the government of the moral authority to punish it on the right.

          Swell job, guys.

          1. “In a way, yes. If we prosecute MAGA but not Antifa, many people will rightly suspect that the MAGA folks were targeted for their political views.”

            How about if we prosecute criminals for actual crimes, and call it a day?

      3. ” I don’t side with either group”

        Evidence suggests otherwise.

    3. Edmund Burke was a Whig, no conservative.

      1. No Limbaugh, amirite?

        1. Modern Trumpists don’t want to claim Burke.

          After all, he was against slavery … um, state’s rights.

    4. It’s interesting from the comments here that the conservative movement has become basically a big tu quoque thing. There are no conservative principles, they just wait around for what the ‘libs’ do and then argue they must do the same.

      I’ve been observing for the last four years that “IKYABWAI?” is the motto of the current GOP.



      (That’s “I know you are but what am I?”, for the slow.)

  17. No. But there should be charges for trespassing and destruction of public property. One’s presence in a crowd, even one’s breaking and entering of a public building, is not remotely close to being enough to demonstrate, conclusively by way of circumstantial evidence and inference, the degree of specific mental intent to overthrow the government (as opposed to protesting).
    Recognizing that is not to deny that some, at least, of those who stormed the Capitol did intend sedition. It’s simply to recognize that proving that particular type of crime that would take additional evidence which prosecutors probably don’t have and won’t be able to develop.
    The exception might come if there are witnesses who flip and reveal prior planning in which the overthrow of the government was specifically discussed and agreed upon, in addition to overt acts in furtherance of that conspiracy. But I doubt that can be developed.

    1. Charge them with theft or vandalism or assault on police as appropriate.

      Even trespass is a bridge too far, protestors occupied House buildings at the Kavanaugh hearings, no charges then. Sedition is crazy.

      1. “…protestors occupied House buildings at the Kavanaugh hearings…”

        Ah yes, the Kavanaugh hearings were constantly interrupted by protestors in the hearing room. Seditious conspiracy?

        I remember this.

        “We’re basically occupying the Senate—the Hart atrium is our Zuccotti Park,” Melissa Byrne, an organizer with UltraViolet, told me. She leaned against a planter containing a ficus tree and kicked off her sandals. “I just wear my socks in here now.” They were mismatched; one was diamond-patterned, and the other read “This is what a feminist looks like.””

    2. There are many videos of them openly saying, while it was happening, that they wanted to overthrow the government.

      1. Post links.

    3. There was the fun video that came out on one of the late-night shows where the nice lady( I’m assuming) is complaining of having been pepper-sprayed at the barricades. Obviously, at the planning meeting, somebody forgot to tell her that revolutionaries get harsh treatment from the government, if they don’t succeed.

  18. Does Professor Adler watch each episode of the Bigoty Hillbillies — the Volokh Conspiracy comments section — and wonder how long he can continue to be associated with this blog?

    1. Yes. VC needs to leave. It was much better when it was stand alone.

      1. I apologize for the crowd that tags along with libertarians. Being a contrarian party attracts a lot of cranks and kooks.

  19. There should be.

    Also, federal prosecutors should go back and file seditious conspiracy charges against the people who invaded the Capitol in order to intimidate Congress on September 20th, 2018, September 24th, 2018, and October 6, 2018.

    1. None of the people you are referring to forced their way into the Capitol when entry was barred and Congress was in session. While I agree with you that sedition charges is overkill for most of those who entered the Capitol yesterday, some lesser charge seems warranted. Professor Adler doesn’t suggest that seditious conspiracy is appropriate for all; rather, he says it’s appropriate for “some.” I’m guessing that he’s referring to the organizers, to the extent that they planned ahead of time to violently prevent the certification of the election from taking place.

      1. I don’t think anyone thought they could actually stop the certification of the election from taking place, unless they could maybe get physical possession of the actual EC ballots.

  20. Progfessor Adler: No, DOJ will not file seditious conspiracy charges.

    There will be other charges filed and the people who actually crashed the Capitol Building will be prosecuted. They are all on camera. They will be found, and arrested. They’ll be charged, tried, convicted and imprisoned. What happened yesterday is completely unacceptable, and they must bear the consequences of their actions.

    At a decent interval, say 2 years, their sentences can be commuted. Even Washington commuted the sentences of the Whiskey Rebellion participants, in a gesture of magnanimity. The Capitol Building rioters (occupiers?) did not kill anyone. They did not attempt to burn down the Capitol Building, did not threaten law enforcement, did not call for the violent overthrow of the government. The gesture of magnanimity is something of a lost art these days.

    All of this is separate and apart from the question of how to effectively address the concerns of 1/3rd of the electorate (~50MM voters) who believe the 2020 election was tainted. We saw yesterday what happens when you summarily dismiss them with contempt.

    1. All of this is separate and apart from the question of how to effectively address the concerns of 1/3rd of the electorate (~50MM voters) who believe the 2020 election was tainted. We saw yesterday what happens when you summarily dismiss them with contempt.

      Here is the proper response from an actual adult:

      “The objectors have claimed they are doing so on behalf of the voters. Have an audit, they say, to satisfy the many people who believe that the election was stolen. Please! No Congressional led audit will ever convince those voters, particularly when the President will continue to claim that the election was stolen.

      The best way we can show respect for the voters who are upset is by telling them the truth. That is the burden, and the duty, of leadership. The truth is that President-elect Biden won this election. President Trump lost. Scores of courts, the President’s own Attorney General, and state election officials both Republican and Democrat have reached this unequivocal decision.”

      Let’s start there. Start with the truth. Stop catering to the crazies. The only contempt being shown is on the part of those who keep lying in order to create concern, for their own benefit.

      1. Start and end with reason and the truth. If the clingers can’t handle it, ignore them. If they get frisky, stomp them.

        1. “Start and end with reason and the truth. If the clingers can’t handle it, ignore them. If they get frisky, stomp them.”

          Sounds good. Same thing when our betters get frisky?

        2. I hate to say I agree wholly with the good Rev., but by God I do.

          Washington did not hesitate to load cannon with grapeshot when it came time to quell the Whiskey Rebellion, and neither should we now.

          1. OK, but do we bring the cannon to DC, or Portland?

            1. Why does it have to be one or the other? Why not both?

              1. Fine with me.

            2. If you take the cannon to Portland, place it on the I-5 bridge facing Vancouver, WA. That’s where the (out and) Proud Boys will be coming from.

          2. “Washington did not hesitate to load cannon with grapeshot when it came time to quell the Whiskey Rebellion, and neither should we now.”

            Washington eventually pardoned the ringleader Whiskey rebels.

      2. loki13, you contemptuously dismiss the concerns of 50MM people. That is a very serious mistake. Defuse them, don’t dismiss them.

        You do understand that they will be heard. The only question is how they will be heard. We saw yesterday what happens when you attempt to ignore them, belittle them, and dismiss them.

        It costs little to set up a non-partisan electoral commission and perform a nationwide forensic vote audit, and issue a final report that discusses the 2020 election…AFTER Joseph Biden is sworn in as POTUS.

        There is far less downside to setting up a commission than to continue ignoring 33% of the electorate (~50 million people) and treating their concerns with utter contempt.

        1. That wasn’t me. That was Mitt Romney.

          The contempt isn’t by those who “dismiss” “concerns.”

          The contempt shown is by those who baselessly stoke the fears of people by lying to them.

          No commission will solve that problem. No commission will stop Josh Hawley (prep school / Stanford / Yale / Supreme Court Clerk) from lying because of his personal ambition.

          You keep using the word “contempt” like it’s a magic incantation; telling people the truth is not contempt. Contempt is shown by catering to their delusions. Contempt is shown by lying to them to advance your personal agenda.

          1. To be clear, there’s nothing wrong with a commission to make recommendations about best practices for future elections. But, as you and Mitt say, that will not actually appease these loons (who are not 50 million people).

            And that’s not the same thing as an “audit,” which is not possible, has no basis in law, and will convince nobody. We’ll just hear about more servers in Germany — the latest Qanon thing is that some Italian defense contractor’s computers were involved, too, after the data was sent to Germany — where the “real” voting data that proves fraud is. (No, I don’t know why these people understand so little about computers that they think their conspiracies require secret computers in foreign countries rather than a laptop in someone’s living room in, oh, let’s say, Richmond, Virginia.)

        2. “loki13, you contemptuously dismiss the concerns of 50MM people. That is a very serious mistake. Defuse them, don’t dismiss them.”

          Whose fault is it that 50MM people have irrational concerns? Why does loki13 have to fix them?

          “You do understand that they will be heard. The only question is how they will be heard. We saw yesterday what happens when you attempt to ignore them, belittle them, and dismiss them. ”

          They throw a tantrum like a small child denied a candy bar in the checkout line. You don’t stop that behavior by catering to it. You stop that behavior by walking away and waiting for the pouting to stop.

    2. the question of how to effectively address the concerns of 1/3rd of the electorate (~50MM voters) who believe the 2020 election was tainted. We saw yesterday what happens when you summarily dismiss them with contempt.

      How should we address them?

      Read the comments from the avid Trumpists here. There is nothing, nothing, they will ever accept as proof the election was kosher.

      They will make up endless lies, demand endless “investigations.” If the investigations don’t turn up fraud then all we will hear is more psychotic raving about the “deep state,” or “false flags,” or other conspiracies.

      Don’t believe me? As I said, read the comments.

      There is no integrity there.

      1. There is no integrity in Fed Gov, most state houses, and media
        There is no integrity in the FBA/CIA/NSA
        There hasn’t been any in decades

        That is why things cannot be believed

        1. Find a video game, pretend you have a girlfriend, or something similar . . . but stop bothering your betters, who have work to do on improving America.

          1. This case probably needs competent professional help, and powerful anti-schizophrenia medications.

      2. In this, I do not agree = If the investigations don’t turn up fraud then all we will hear is more psychotic raving about the “deep state,” or “false flags,” or other conspiracies. Nobody seriously disputes the 9/11 commission report. There is historical precedent for this kind of situation. It has worked before.

        Listening to ‘the other’ is one of the hardest things to do.

        As I said before, ignoring them and being contemptuous of them will result in more incidents. And it will spread to statehouses as well. It happened yesterday in PA. It will happen in other states also.

        There is a way forward where everyone can get something, and more importantly, nobody loses anything. I would encourage you to write to your congressman and senators (as I have).

        1. XY.

          Again,

          Please read the comments of the people on your side. They are unhinged Trump worshipers. They will rationalize anything. Even now they are claiming, based on complete lies that Antifa was behind yesterday’s riot.

          These are people who think Hugo Chavez had something to do with rigging the election.

          1. “One of the graphics includes a photograph of two people that can also be found on the website Philly Antifa. As noted by Twitter user Respectable Lawyer, though, the reason the photo of those people is on the website isn’t that they are antifa, but that they were believed to be fascists. That’s the “fa” in antifa: The ideology is predicated on combating fascism.”

            LOL. Well, if antifa just so happened to have posted a picture of these two guys on their website claiming that they were fascists . . . . that totally disproves that antifa wanted to set them up as false flag fascists!

            Wait . . . . what? Dumb, dumb, dumb.

            Here’s the reality. I don’t know jack squat about the details of what really happened — and neither do you, bernard! But just like some on the other side, you immediately rush in and declare you now the truth about what happened, and that truth just so happens to be whatever is most convenient to your politics — based on whatever scraps of nourishment have been provided for your confirmation bias.

            1. I am 100% sure that Hugo Chavez was not part of setting up a false-flag attack on the US capitol.

      3. Not me. I’m very much open to evidence that the election was kosher. More importantly though, I would like to see voter ID and such reforms that would actually make elections reasonably secure by any stretch of the imagination.

        Just for example, the private contractors that control our vote counts asserted in court that the computer code that counts our votes cannot be disclosed because it is proprietary. Those seeking to review it have not been permitted to do so.

        I have no evidence that these private companies did anything wrong (other than I think some politician in the Philippines previously stated that the same company was offering election fraud services).

        But the idea that our vote counting processes, including computer codes, should not be totally transparent, or really controlled by private companies in any way, is extremely ludicrous.

        1. “Not me. I’m very much open to evidence that the election was kosher. More importantly though, I would like to see voter ID and such reforms that would actually make elections reasonably secure by any stretch of the imagination.”

          The problem with voter ID is that requiring ID to vote and then charging the voter for ID they can use to vote is flatly unconstitutional.
          You could have it if dear old Uncle Sammy stepped up and provided all us citizens with ID suitable for use for voting at no cost (just issue every citizen a free passport… you know, the government document that proves citizenship and identity… waiving the usual fee for passport, $110 each times 300 million or so citizens, or $30 billion-ish). But if you issue one to each citizen, voter-ID requirements won’t disenfranchise any from any demographic groups who tend to vote Democratic, destroying the value of voter-ID requirements to Republicans who suddenly remember how they don’t like government spending, and you wind up with no voter ID.

          1. No, it’s not unconstitutional. I don’t mind if IDs are free but they should be issued by states.

            1. Poll taxes absolutely ARE unconstitutional. There’s approximately no wiggle room to claim that SOME poll taxes are authorized by the Constitution.

        2. “But the idea that our vote counting processes, including computer codes, should not be totally transparent, or really controlled by private companies in any way, is extremely ludicrous.”

          So insert a requirement for open-source code for election equipment into the appropriations bills that pay for election equipment. Ideally, you’re also going to need to also insert some cryptography that will detect changes to the code in the actual devices. The cryptography will necessarily be proprietary.

    3. A specific example, XY.

      The Georgia results were recounted twice. The election was run by Republicans, Trump supporters. The various “questions” have been thoroughly answered by those officials.

      Yet still, you,or somebody, wants further investigation, or an “audit,” or some BS. It never stops.

      How to address the concerns? Have more responsible Republicans step up as, to their credit, some have done, and patiently explain the facts, in detail.

      And if Trumpists don’t want to face reality too bad. What you seem to be advocating is surrendering to threats of mob violence.

      1. Is that all it takes for you to believe an official who says “we have investigated ourselves, and found no wrongdoing”?

        1. sixty court cases, including 3 in which the Trump campaign withdrew their own lawsuits rather than present evidence, certainly is convincing.

          1. After how much fact discovery?

            1. After how much fact discovery?

              IANAL, but I’m pretty sure you don’t get to do discovery if you withdraw your claim.

              1. IANALE(ither) but you can withdraw claims either before or after discovery. This is what usually happens if you do discovery and it turns out the facts are not what you hoped they’d be.

            2. “After how much fact discovery?”

              Why would team Trump conduct fact discovery? they have no use for facts, particularly not facts that work against them.

        2. What do you believe?

          What evidence do you have that anything at all was wrong in GA?

          Why do you think acknowledged Trump voters who ran the election would participate in, or cover up, fraud that helped Biden win?

          I know. Because Trump said so and you’re a gullible fool who believes everything that lying POS says.

          1. “What evidence do you have that anything at all was wrong in GA?”

            THE WRONG GUYS WON!!!!!
            Trump says the evidence is that lots of people attended his rallies but people stayed home from Biden’s… which proves that Biden supporters understand how pandemic works and Trump supporters think basking in the radiant orange glow of Trump’s presence confers immunity.

            1. Trump and his sycophants have literally used the “Way more people showed up at Trump’s rallies” argument at least a half dozen times in the last couple of days alone.

              1. I know, which is why I went to the trouble of pointing out that it doesn’t prove what they think it proves.

      2. The Georgia recounts have helped many people have more confidence that it was legit. It certainly holds weight for me. It’s true that the recounts are not relevant to many theories of fraud, such as ballot stuffing. And it’s also true that some people won’t be satisfied no matter what happens.

        But it does matter and makes a big difference. The truth is, nobody even has the time, ability, or interest to research this stuff enough to even keep up with what’s going on. I certainly don’t, and I probably stay more kept up than 99.99% of people, actually need to cut down time wasted on this.

    4. “We saw yesterday what happens when you summarily dismiss them with contempt.”

      I summarily dismiss them with contempt.

      I blame my education and character.

  21. They should. But these idiots want the law to protect them but not bind them and bind others but not protect them.

    An assault on the capitol is nothing short of seditious and domestic terrorism. These people need to be tried, convicted, and sent to prison for their crimes.

  22. I have my doubts that Trump’s AG will be allowed to file any such charges. Biden’s AG might, depending on who gets pardoned between now and the 20th…

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