Federal 'Strike Force' Builds Sedition Cases Against Capitol Rioters. Will It Work?

Members of the insurrectionist mob that attacked the U.S. Capitol last week face what the federal prosecutor in charge calls a "mind-blowing" range of potential charges, from destruction of federal property, trespass and mail theft to possession of destructive devices and felony murder.

For some of the most serious charges, the acting U.S. attorney for Washington, D.C., Michael Sherwin, says his office has set up a "strike force" to press federal charges that come with fines and up to 20 years in prison.

"We're looking at significant felony cases tied to sedition and conspiracy," says Sherwin, who's overseeing the sprawling investigation, which he predicts will grow into "hundreds" of cases in the coming weeks. "Their only marching orders from me are to build seditious and conspiracy charges related to the most heinous acts that occurred in the Capitol."

Legal experts say prosecutors can make a strong case for sedition. The statute is pretty clear: It's sedition not just if two or more conspire to "overthrow, put down, or to destroy" the government by force, but also if two or more conspire "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."

Rioters used force to try to prevent or delay Congress from formalizing the Electoral College vote for a new president, among the most important functions Congress carries out. They shut down the process for hours in a violent melee that left at least five people dead.

"Anybody who broke in [to the Capitol] with the intent to stop the vote, that's sedition. That is textbook sedition," says law professor Michael McDaniel, a retired Army brigadier general who also held high-level federal and state homeland security posts. "I think there has to be successful criminal prosecutions of these individuals that were involved in seditious conspiracy."

McDaniel, who now directs the Homeland and National Security Law Program at Western Michigan University, says if sedition is not among those charges, it risks further normalizing the kind of political violence we've seen in the Trump era, from Charlottesville, Va., to the U.S. Capitol.

"This dark barrel of political violence has been opened, and once open, you can't put the lid back on it easily," he says. "Any sort of symbolic or real gathering of government officials is going to be subjected to the possibility of political violence from these groups."

But others caution that sedition is hard to prove and, moreover, could ricochet and be used to stifle legitimate dissent.

The statute has been used a handful of times in modern America, with very mixed success. It worked against Islamist terrorists, including the blind sheikh Omar Abdel-Rahman, who masterminded the 1993 World Trade Center bombing.

Its most recent use, in 2010 against the far-right Hutaree militia in Michigan, did not go well.

Members of this self-described Christian militia were accused of plotting to kill a police officer and then bomb his funeral in hopes of sparking an anti-government uprising.

A judge dismissed the sedition charges, ruling the government had only circumstantial evidence and had failed to prove that the group had planned to carry out specific attacks. Three members were convicted of lesser weapons charges and sentenced to time served.

"It's hard to prove," says Andy Arena, who led the Hutaree investigation when he was special agent in charge of the FBI's Detroit Division. Today some Capitol rioters, Arena says, may well meet the terms of the sedition statute. But he cautions that it's a high bar.

"I'm not saying they can't do it here. I'm not saying they should not charge it. It's just you got to make sure you got all your ducks in a row, because it's, it's tough," he says.

A key question in the U.S. Capitol attack is to what extent the rioters had an operational plan and even loose organization. Prosecutors are looking at evidence, including video footage from news crews, congressional aides and the perpetrators themselves.

U.S. Attorney Sherwin tells NPR that while it's unclear there was any overall command and control by rioters, there are certainly indications of coordination.

"They look paramilitary almost, right? You've got the uniform, you've got communication, you have all the paraphernalia," he says. "Those show indications of affiliation and a command and control. So I believe we are going to find those hallmarks. I can't say when. It could be weeks, if not months."

And it's those hallmarks that are likely to prove key in any potential sedition case, says former FBI agent Arena, who's now director of the Detroit Crime Commission and a law professor.

"These weren't the brightest guys," he says, noting that some rioters boastfully splashed their exploits and attempts to stop the electoral count across social media shortly after their attack. Some even set up a makeshift gallows and showed off gear such as plastic handcuffs and climbing equipment.

That's all evidence, Arena says, that may prove intent and make any sedition case a little easier.

"You got guys showing up there with rappelling equipment, zip ties. I mean, they're looking to handcuff people. I mean, why else are you doing that, right?" Arena says. "So they weren't going there to exercise their First Amendment free speech, to protest. They were going there to get it on."

But other legal scholars strongly caution against going down the sedition road, pointing out that the full arsenal of other, more conventional, federal criminal charges should prove more than adequate.

"I don't disagree that [rioters] should be prosecuted," says Stanford Law School professor Shirin Sinnar. "But the most important efforts are political and not simply aggressively deploying criminal law."

Seditious conspiracy charges could easily boomerang years on, Sinnar warns, and end up being used to stifle dissent, especially by people of color and other historically marginalized groups.

"We've got a long history of using sedition laws to suppress dissent," Sinnar says. "And although that's not what those who are invading the Capitol were doing — they were engaged in action, not just speech — we still need to be careful about expanding a framework that's been so connected to the suppression of ideas."

Following shocking crimes and events, Sinnar points out, America too often goes after low-hanging fruit and turns its gaze away from the much more powerful systems in place that enabled those events.

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