The Justice Department is considering Civil War-era sedition charges against Capitol rioters, but experts say winning the cases won't be easy

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Trump supporters clash with police and security forces as people try to storm the US Capitol on January 6, 2021 in Washington, DC. Brent Stirton/Getty Images

  • The DOJ is weighing sedition charges against Capitol rioters, a former top prosecutor said.

  • Sedition charges refer to the forcible overthrow of the US government and are extremely rare.

  • While sedition charges might demonstrate the severity of January 6, they’re very difficult to prove.

  • Visit Insider’s homepage for more stories.

In an interview with “60 Minutes” on Sunday, Michael Sherwin, the former top prosecutor overseeing cases from the January 6 Capitol riot, said the Justice Department might charge insurrectionists with sedition.

“I personally believe the evidence is trending toward that, and probably meets those elements,” Sherwin told Scott Pelley. “I believe the facts do support those charges. And I think that, as we go forward, more facts will support that.”

Sherwin held the post of US Attorney for the District of Columbia from May 2020 until President Joe Biden replaced him in March. As the top federal prosecutor overseeing Washington, DC, his office has brought cases against more than 300 people in the wake of the January 6 insurrection.

The charges against accused riot participants have consisted mostly of trespassing and disorderly conduct on Capitol grounds. Prosecutors also brought conspiracy charges against members of far-right groups like the Proud Boys and the Oath Keepers, who they say planned and organized violence ahead of the event.

Sedition, though, is a much more serious charge. It basically refers to a group of people conspiring to violently overthrow the government of the United States.

The law was first enacted following the Civil War, as a way to arrest Southerners who continued to wage war against the US government. And while hundreds of people storming the Capitol building to try to stop a branch of government from confirming the results of a democratic election might seem to fit the bill, sedition charges are extremely rare.

Whether the Department of Justice ultimately brings sedition charges against Capitol riot participants will come down to a cost-benefit analysis, according to Seamus Hughes, the deputy director of the Program on Extremism at George Washington University.

Officials will have to weigh how much sedition charges will deter people from taking similar actions in the future, whether it’s worth trying to persuade a jury of the charges, and whether the charges could set precedents that future administrations might abuse.

“At the end of the day, this situation is not going to be determined by the facts of the case,” Hughes said. “It’s purely going to be determined by prosecutorial discretion. Is it better to get a slam dunk case? Or is it better to put your finger on the scale and say ‘this is unacceptable?'”

Read more: A Trump-appointed prosecutor blindsided the Biden DOJ with a ’60 Minutes’ interview on the Capitol riot cases. Now a federal judge wants to talk about it.

Attorney General Merrick Garland will ultimately make the call

The last time federal prosecutors charged anyone with sedition was in 1993, when federal prosecutors in the Southern District of New York charged Sheikh Omar Abdel-Rahman and nine of his followers after the first World Trade Center bombing. The group was successfully convicted on the charge at 1995 trial, and Abdel-Rahman died in prison in 2017.

It was considered such a rare move that Mary Jo White, then the US Attorney for the Southern District of New York, traveled to DC to convince then-Attorney General Janet Reno that the group should be charged with seditious conspiracy.

Experts expect that Attorney General Merrick Garland will ultimately decide whether to bring sedition charges for the Capitol riot.

Merrick Garland testifies at his confirmation hearing for attorney general. Getty

“The Department of Justice is always going to go where the facts lead them,” Hughes said. “But when you come to a point where you’re going to do something as serious as sedition charges, it goes to the very top in terms of whether they wanted to do that or not.”

Justice Department leaders were infuriated that Sherwin talked about sedition charges in his “60 Minutes” interview, as Insider’s Ryan Barber reported. It was “highly inappropriate” for someone in his position to speculate about charges before they’re actually brought, according to Karen Greenberg, director of the Center on National Security at the Fordham University School of Law.

“The whole point of the criminal justice system is to depend on evidence and to follow the evidence,” Greenberg told Insider. “You don’t just don’t come out in front of it and say, ‘well, this is what should happen.’ For one thing, you run the risk of compromising the judiciousness of the process.”

Michael Sherwin, Acting U.S. Attorney for the District of Columbia, speaks at a press conference to give an update on the investigation into the Capitol Hill riots on January 12, 2021 in Washington, DC. Sarah Silbiger-Pool/Getty Images

“It puts an unnecessary shadow on an investigation that does not need that,” Greenberg added.

But the fact that no one knows what Garland will decide is a “good thing,” Greenberg said. Garland said the investigations related to the riot will be the Justice Department’s top priority, but he’s avoided making any additional public comments about the cases.

“This needs to take its proper course through the courts, with direction from [Garland], with the idea that the evidence and the information when it’s all put together will lead to the charge,” Greenberg said. “Not because somebody said it before any kind of indictment or charge.”

Sedition charges will show how serious the riot was – but they could fail at trial

Part of the challenge in bringing sedition charges, Hughes said, is convincing a judge and jury that they should stick.

The Justice Department has charged people with sedition on only a few occasions in the past half-century. Before the Abdel-Rahman case, prosecutors brought sedition charges in 1980 against Oscar López Rivera, the leader of a Puerto Rican independence paramilitary group that orchestrated more than 100 bombings in the US. He was convicted and remained in prison until President Barack Obama commuted his sentence in 2017.

Trump supporters clash with police and security forces as they try to storm the US Capitol. Brent Stirton/Getty Images

Because sedition charges are so rare, prosecutors have few precedents to point to when convincing a jury that they should convict the defendants on them. Hughes compared them to the riot charges that were brought against some participants in 2017’s deadly Unite the Right rally in Charlottesville, which didn’t stick for some white supremacists who attended the event.

“Those fell apart because the riot charge is relatively unique and novel,” Hughes said. “It just takes a level of hand-holding for a jury, not like a clear assault charge.”

There’s also the matter of precedent. In 2020, the Justice Department under President Donald Trump pushed for sedition charges against violent protesters, though prosecutors ultimately didn’t use the statute. It was part of the Trump administration’s crackdown on protesters who were demonstrating against police brutality and racism after Minneapolis police killed George Floyd.

Greenberg said that the sheer severity of the insurrection might lead the Justice Department to bring sedition charges and narrowly tailor them so that the cases succeed.

“This is a threshold moment for the country,” Greenberg said. “We want to be not overly aggressive, but you want to actually make the point that this is a level of seriousness and violation that is new. And that we need to mark and to deal with that.”

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