Insurrection? Sedition? Incitement? Unpacking the Legal Issues From the DC Capitol Riot

In the days since President Donald Trump’s supporters ransacked the U.S. Capitol, resulting in five deaths, prosecutors have been talking about potential charges that to many Americans sound arcane, such as sedition and seditious conspiracy. Lawmakers meanwhilevoted to impeach the president for something called incitement of insurrection. The unprecedented events that shocked Americans and the rest of the world require some legal unpacking.

1. What is incitement of insurrection?

The 14th Amendment of the U.S. Constitution prohibits the president from engaging in insurrection or rebellion against the U.S. Trump spoke before a crowd of supporters Jan. 6, telling them — fallaciously — that he had won the election and that “if you don’t fight like hell you’re not going to have a country anymore.” He urged them to march to the Capitol where lawmakers were counting electoral votes to ratify Joe Biden as the winner. The crowd did, and stormed the building, overrunning the Capitol police who tried to keep them back, and temporarily halting the vote count. Thus, the House said, Trump violated the 14th Amendment by inciting violence against the government.

2. What’s the penalty?

If convicted on the impeachment count after a trial by the Senate, he would be removed from office. The Senate may also hold a separate vote on barring Trump from ever running again for federal office, which would require only a majority, as opposed to the two-thirds needed for impeachment.

3. Could Trump face criminal charges?

Inciting others to insurrection or riot is a federalcrime, but the Justice Department would have to charge him separately. That’s unlikely, according to Frederick Lawrence, a lecturer at the Georgetown University Law Center. Not only would prosecutors have to prove Trump intentionally whipped up his supporters, Lawrence said, but also that he intended for them to break into the Capitol, loot and cause bodily harm. A further complication is a 1969 Supreme Court precedent that shields inflammatory speech under the First Amendment unless it’s aimed at “imminent” lawless behavior. And there’s the possibility — untested — that Trump could grant himself a pardon before leaving office.

4. What about the rioters?

Dozens of rioters have already been charged, mostly with misdemeanors such as trespassing that carry a maximum sentence of a year in prison. But Michael Sherwin, Acting U.S. Attorney in the District of Columbia,said prosecutors also are looking to charge some with sedition and seditious conspiracy, felonies that could result in 20-year prison sentences. “We look for the most simple charge that we can file as quickly as possible,” Sherwin said. Additional charges can follow, he said, adding that prosecutors have already started to present more significant felony charges to grand juries that can return indictments.

5. So what’s seditious conspiracy?

Simply put, sedition is trying to overthrow the government through word or deed. It’s different from treason, which is aiding the enemies of the U.S. The crime of sedition is often brought as seditious conspiracy, which involves two or more people conspiring “to overthrow, put down, or to destroy by force the Government of the United States.” That was the chargefiled against 14 white supremacists in 1987 and against the terrorists behind the 1993 World Trade Centerbombing. Protesting is not sedition, but a prosecutor could try to make a case that the rioters who stormed the Capitol to stop the government from working thereby sought to overthrow it, said Richard Kaplan, a criminal defense lawyer with Kaplan Marino in Beverly Hills. “The big question is how organized was this?”

6. What would they have to prove?

Intent is important. Prosecutors will look at communications, social media and texts to try to show that the rioters planned to storm the Capitol and stop Congress from verifying theElectoral College vote, Kaplan said. Many of those charged likely will argue they were caught up in the moment and had no prior intent, Kaplan said. Prosecutors also could try to pressure rioters facing more serious charges, such as bringing guns into the Capitol, to cooperate and testify against possible co-conspirators to avoid a stiff sentence, Lawrence said.

The Reference Shelf

• Alink to the impeachment resolution.
• Avideo as House Speaker Nancy Pelosi signs it.
• Bloomberg Opinion’s Jonathan Bernstein writes Trump all butimpeached himself, and Cass Sunstein explains the science ofunleashing.

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