WASHINGTON - For months, Donald Trump and his defenders have downplayed the Jan. 6 attack on the U.S. Capitol, often citing the fact that no one had been charged with a crime involving overthrow of the government.
That changed Thursday when the Justice Department announced charges of "seditious conspiracy" against 11 men including Stewart Rhodes, a disbarred lawyer from Granbury, Texas, who founded and leads the far-right Oath Keepers.
The charges put the full weight of the government behind a dramatically different narrative than the one about a peaceful protest that maybe got out of hand with a few violent bad apples.
- What is "seditious conspiracy"?
The federal code defines it in 18 U.S. Code § 2384:
"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."
That's broad enough to cover anything from armed uprising to interfering with Congress.
- Rhodes is a former Army paratrooper. Any special consequences for a sedition charge?
More than 1 in 10 suspects arrested for the Jan. 6 attack served in the military. For veterans, a charge of seditious conspiracy could mean a big financial hit on top of any prison time.
Under Title 38 of the U.S. Code, Section 6105, veterans convicted of "subversive activities" forfeit their benefits: health care, disability compensation, education and burial benefits. Their dependents also lose benefits.
The list of "subversive activities" includes seditious conspiracy, rebellion or insurrection, advocating the overthrow of government and mutiny or sedition (a crime under military law).
Military retirees could also forfeit pensions.
- What's the difference between seditious conspiracy and sedition, insurrection and treason?
They are all offenses against the state, in different ways.
Seditious conspiracy involves two or more people contemplating, advocating for or engaging in use of force against the government.
Sedition is language intended to incite insurrection against government. Bans on sedition have always bumped up against the First Amendment. Rather than being a separate crime, sedition has effectively come under the seditious conspiracy statute for decades.
Insurrection involves armed uprising against the government.
Treason involves betrayal. Someone who owes allegiance to the United States yet "levies war against them or adheres to their enemies, giving them aid and comfort" has committed treason. The Framers put that definition in the Constitution, to focus on offenses against the state rather than against the king.
- Sedition in the early years of the United States
English common law made sedition a crime, in writing or speech. One of the most famous cases involved publisher John Peter Zenger, charged with seditious libel in 1733 for criticizing New York's colonial governor. The jury acquitted him, setting an American tradition of press freedom.
Still, it wasn't long before the new country banned sedition.
The Sedition Act of 1798 made it a crime to publish "false, scandalous, or malicious writing" against the government. The federalists, led by President John Adams, hoped the law would quash some of the venom from the Republican media, in an era when newspapers were unabashed mouthpieces for rival parties.
James Madison and Thomas Jefferson vehemently opposed the Sedition Act, arguing that if criticism of government was not protected, the First Amendment was an empty promise. The law proved as unpopular as Adams himself. He lost to Jefferson in 1800. The Sedition Act expired the following March. Its main legacy: renewing the nation's devotion to free speech.
- Sedition Act of 1918
In the midst of World War I, Congress passed the Sedition Act of 1918, with the backing of President Woodrow Wilson, who worried that disapproval of the war would hurt morale.
The public came to see this law, too, as an overreach in limiting political speech - but not before nearly 900 people were convicted. The law made it a crime to say or publish "any disloyal, profane, scurrilous, or abusive language about the form of the Government of the United States" or to "willfully urge, incite, or advocate any curtailment of the production" of the things "necessary or essential to the prosecution of the war."
In one famous case, Justice Oliver Wendell Holmes rolled out the "clear and present danger" test, balancing free speech rights against national security. Congress repealed the law in 1920.
- Is "sedition" in the Constitution?
No, but it's alluded to in the 14th Amendment, adopted after the Civil War.
Anyone who "engaged in insurrection or rebellion" against the United States, or gave "aid or comfort to the enemies thereof," and who had previously sworn to uphold the U.S. Constitution, is barred from serving in the military or federal office, elected or otherwise.
- What other laws cover sedition?
In 1961, after the Red Scare of communism in the previous decade, Congress barred pension payments for retired federal workers convicted of "treason, sedition, and subversive activities."
A 1965 law barred hospital payments for a similar list of crimes.
In August 2007, Congress implemented a reform recommended after the Sept. 11, 2001, attacks, disqualifying anyone convicted of espionage, sedition or conspiracy to commit either crime from getting fast-track clearance through airports through programs such as TSA Pre-Check.
In Dec. 2016, Congress amended the Uniform Code of Military Conduct to make it a court-martial offense to solicit or advise someone else to commit desertion, mutiny or sedition.