The Volokh Conspiracy

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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?


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.