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By Elie Honig

Dear Reader,

The Justice Department has now filed charges against over 400 people who took part in the January 6 Capitol insurrection. That’s good. Yet federal prosecutors have not filed a single charge of sedition against anyone. That’s inexcusable.  

To be sure, DOJ has talked the talk. At his confirmation hearing, Attorney General Merrick Garland vowed with respect to the Capitol insurrection to “pursue these leads wherever they take us,” adding, “[w]e begin with the people on the ground and we work our way up to those who were involved and further involved.” And in an interview on 60 Minutes, federal prosecutor Michael Sherwin — who inexcusably violated longstanding, fundamental Justice Department policy when he commented publicly on a pending investigation — noted that “I personally believe the evidence is trending towards that [sedition charges], and probably meets those elements… I believe the facts do support those [sedition] charges.”  

But, thus far, DOJ’s actions have not matched the rhetoric. And it’s not clear what if anything Garland is waiting for. In fact, it’s starting to look like DOJ might shy away from sedition charges altogether. 

On its face, “sedition” conjures dramatic images of mass rebellion leading to the overthrow of the federal government. And that worst-case scenario certainly qualifies under the seditious conspiracy statute, which criminalizes any plot “to overthrow, put down, or to destroy by force the Government of the United States.” There’s a reasonable argument that that’s exactly what the January 6 insurrectionists were trying to do. Recall, for example, the chants about hanging the Vice President and attacking the Speaker of the House as both leaders were whisked away by their Secret Service details just moments before the rioters breached the highly-secure House and Senate floors.  

But prosecutors don’t even need to prove that much, because the sedition statute also has less dramatic applications. The law prohibits conspiracy “by force to prevent, hinder, or delay the execution of any law of the United States.” Plotting to prevent the counting of electoral votes by Congress certainly qualifies.  Indeed, the Justice Department recently charged a group of “Oath Keepers” with the separate but similar federal crime of “obstruction of an official proceeding.” The Justice Department’s failure to charge sedition in this Oath Keepers case is particularly conspicuous because the facts alleged in the indictment plainly satisfy the legal elements of sedition: “obstructing a federal proceeding.”

And there’s an even more mundane application of the sedition law: “by force to seize, take, or possess any property of the United States contrary to the authority thereof.” The Capitol building qualifies as “property of the United States” and the insurrectionists weren’t exactly authorized to take over. Done and done.

So what’s going on here? Why the hesitation from Garland and his prosecutors? Garland certainly seems to understand the stakes. He has publicly compared the present-day threat of domestic terror to the unimaginable horror of the 1995 bombing of the Oklahoma City federal building (Garland supervised the Oklahoma City prosecution during his earlier days at DOJ). Yet he has pulled up short on DOJ’s charging decisions on the January 6 attack on the Capitol.

Here’s what I think is happening. The word “sedition,” like so much around the January 6 insurrection, has become politicized. Democrats and clear-eyed Republicans understand and publicly acknowledge the menace that democracy faced on January 6, while delusional (or just plain play-acting) Trump sycophants pretend nothing much went down. (“Normal tourist visits” and such.) Garland seemingly wants to keep DOJ out of the political fray, and sedition charges likely would add little or anything to the ultimate punishment faced by the charged defendants. In federal cases involving multiple charges, those charges tend to run concurrently (meaning, at the same time). And the Oath Keepers case, for example, likely would not result in any additional punishment if DOJ added a sedition count to the existing “obstruction of an official proceeding” charge. Why, then, should Garland put the Justice Department in the crossfire of political controversy by charging sedition?

If that is indeed the thinking, it’s a mistake. First, it simply isn’t the job of prosecutors to assess the prevailing political winds and then contort themselves to stay clear.  You charge the case you have and let the chips fall where they will. If some politician doesn’t like the name of a statute you’ve charged, well, too damn bad. And if others might use your indictment to rally a political cause, so be it. If the indictment is solid on the law and supported by the facts, then bring it.    

It has become apparent in recent weeks that DOJ will have a prominent role in setting the historical record straight about January 6. Congress isn’t going to do the job, having shamefully run away from the obvious imperative to convene a bipartisan January 6 commission. In fairness, this one is squarely attributable not to Congress as a whole, but rather to Senate Republicans who voted against the measure and leveraged the outsize power of the veto to kill the bill with just 35 “no” votes, along with 11 Senators who courageously decided not to vote at all.  

President Joe Biden also has declined to pick up the mantle, declaring through his spokesperson in circular and confounding fashion that he won’t appoint a January 6 commission because Congress should do it — even after Congress had voted not to do so. So let’s get this straight: Congress won’t do the job, yet Biden refuses to do the job because he thinks Congress should do it. The obvious logical result: nobody’s going to do the job at all. Biden’s recalcitrance here is a mistake.    

With both Congress and the President bowing out, DOJ may be compelled to take the lead in marking the events of January 6 for history. No, it’s not the Justice Department’s job to run a commission or to author a commission-style report. And the events of January 6 go beyond the criminal conduct that is comfortably within DOJ’s purview. But the Justice Department can and should do its part by charging all responsible persons with all applicable federal crimes — even those, like sedition, that might ruffle some feathers.  

Stay Informed, 

Elie