• Peter Coetzee

Revolution or riot? The legal issues of prosecuting the January 6 insurrection

Updated: May 20, 2021


Photo Source: https://static.reuters.com/resources/r/?m=02&d=20210107&t=2&i=1546902274&r=LYNXMPEH0609E&w=640


On January 6, 2021, then President Trump exhorted a mob of his supporters to march on the Capitol building with a vague mission of “stopping the steal” of the election by alleged traitors within the government. Most Americans watched in horror as rioters stormed the Capitol while live-streaming their own law-breaking. The country witnessed senior political leaders fleeing for their lives, a rioter shot in the neck at point-blank range as she was attempting to force her way into a restricted area, and a police officer screaming in agony as he was crushed by a throng. Many media outlets and individual Americans would go on to describe January 6 as “treason” and the perpetrators as “traitors.” While the colloquial definition of these words may fit, it is important to recall that a term like “treason” does have a legal definition which is exceedingly narrow. With that in mind, it is useful to explore the legal tools available to prosecute those involved in the riot, as well as what January 6 rioters are generally being charged with.


Treason has the distinction of being the only crime listed and defined in the United States Constitution. The Constitution frames it narrowly: one is guilty of treason only if they are “levying war” against the country or “giving aid and comfort” to an enemy of the United States. “Enemy” in this context has been understood to mean foreign countries. Supreme Court decisions and Congressional acts have since further narrowed the scope of treason: a person guilty of treason must have a specific intent to betray the United States, on behalf of an enemy of the country, and then engage in an overt act to commit that betrayal. The punishment for treason includes execution or a minimum 5-year sentence and a minimum $10,000 fine. With this definition, it appears January 6 was not treasonous; merely unpatriotic and criminal. The events were not perpetrated to benefit a foreign nation but rather an outgoing American president.


The crime of sedition has a murkier legal history. A law known as the Alien and Sedition Act was passed in 1798 that, among other things, criminalized many actions of the government, even criticism against elected officials. These Constitutionally-dubious laws were deeply unpopular and were repealed shortly after their passage. Today, the government charges sedition under the crime of “seditious conspiracy,” which involves planning (or planning to use) physical force against the U.S. government and an effort to “seize, take, or possess” government property, or “delay the execution of any law of the United States” by force. Individuals convicted of seditious conspiracy face up to 20 years of imprisonment. The behavior of the Capitol rioters fits within the definition of sedition, much more so than treason. Photographs of grinning rioters gleefully showing off their stolen government property have made it simpler for prosecutors in this regard. Many legal observers have stated that the Capitol riot constitutes a fairly clear case for the government to charge the rioters with seditious conspiracy. However, as of this writing, no individuals have been charged with seditious conspiracy. This is likely due to the very high threshold that is necessary for a successful prosecution under this law. Thus far, prosecutors have focused on quickly taking care of the “low hanging fruit.” In other words, the government has mostly charged individuals that documented themselves committing federal crimes and then uploading it to the internet. Sedition charges require a high degree of evidence, and if such charges are forthcoming, they will likely be unveiled in the weeks and months to come. In any case, federal prosecutors have recently stated that there is sufficient evidence to charge individuals with sedition in the coming weeks.


The last term to consider is insurrection. Insurrection occurs if someone “incites, assists, or engages in any rebellion or insurrection against” the United States or if they give “aid or comfort” to someone engaging in such activity. If found guilty, an individual faces a minimum of 10 years imprisonment and is barred from holding any office in the United States government. Legal experts have stated that insurrection is borderline impossible to prove in court, and thus this prosecutorial tool has largely been left on the shelf. The term insurrection came under a lot of scrutiny during the second impeachment trial of former President Trump as some sought to prevent him from holding office again. It is telling that this law was cited heavily during the impeachment process while the rioters have not been charged with insurrection. Impeachment is a political process, not a legal process, so ultimately, legal standards do not have to be met for an official to be impeached. On the other hand, criminal trials must strictly meet the legal standard for conviction.


If federal prosecutors are not charging the rioters with treason or insurrection, and with any seditious conspiracy charges likely to remain unknown for the time being, what have the Capitol rioters generally been charged with thus far? As mentioned before, most of the charges to date have been related to the documentation released by the rioters showcasing their own criminal activity. The most common charges facing these helpful criminals include knowingly entering restricted government spaces, assaulting federal officers, impeding and disrupting official government business, impeding federal officers in their course of duty, theft of government property, and threats or intimidation of specific federal officials. As investigations into seditious behavior and assaults on federal officers continue, it is likely that charges will increase both in quantity and severity. Thus far, the government has charged over 400 individuals and arrested over 280 for their roles in the riot.


The legal fallout from January 6 will continue for months and potentially years to come. The riot has also badly damaged relations between the parties on Capitol Hill. To be slightly glib, one lesson that can be taken away from this disaster is that oversharing can cause legal consequences for both private citizens and practitioners. A huge amount of the evidence presented against rioters comes from their own public communications. On the other side, the Justice Department is currently probing an acting U.S. attorney for providing a wide-ranging interview to 60 Minutes regarding ongoing January 6 cases. In any case, the full story of the riot will slowly be revealed as new charges are filed, and current cases make their way through the system.

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