Rare sedition charge gains interest after Capitol attack

Sedition charges eyed

A Civil War-era sedition law being dusted off for potential use in the mob attack on the U.S. Capitol was last successfully deployed a quarter-century ago in the prosecution of Islamic militants who plotted to bomb New York City landmarks.

An Egyptian cleric, Sheikh Omar Abdel-Rahman, and nine followers were convicted in 1995 of seditious conspiracy and other charges in a plot to blow up the United Nations, the FBI’s building, and two tunnels and a bridge linking New York and New Jersey.

Applications of the law making it a crime to conspire to overthrow or forcefully destroy the government of the United States have been scant. But its use is being considered against the mob that killed a police officer and rampaged through the U.S. Capitol last week.

Michael Sherwin, acting U.S. attorney for D.C., has said “all options are on the table,” including sedition charges, against the Capitol invaders.

“Certainly if you have an organized armed assault on the Capitol, or any government installation, it’s absolutely a charge that can be brought,” said Andrew McCarthy, a former federal prosecutor who secured convictions at Abdel-Rahman’s 1995 trial.

The challenge, he said, is whether prosecutors can prove people conspired to use force.

“In our case, conspiracy was a layup because of the nature of the terrorist cell we were targeting. In this case, can they show conspiratorial activity or was it one of these things that spontaneously combusted, which makes conspiracy harder to prove?” McCarthy said.

Karen Greenberg, director of the Center on National Security at the Fordham University School of Law, said sedition charges in an attack against the centre of U.S. government are even more appropriate than in the New York bombing plot.

“Of course we should use it here. That’s what this is, seditious conspiracy,” she said.

Before the Capitol attack, federal prosecutors talked about using the seditious conspiracy statute in cases involving protests against police brutality, though none were brought.

In a Sept. 17 memorandum, Jeffrey A. Rosen, now the acting U.S. Attorney General, urged prosecutors nationwide to consider filing seditious conspiracy charges against what he called “violent rioters” during racial injustice demonstrations sparked by the police killing of George Floyd.

Rosen wrote that the law didn’t require proof of a plot to overthrow the U.S. government.

Lawyers interviewed by The Associated Press agreed that it would be stretch to try to put President Donald Trump or lawyer Rudolph Giuliani on trial for sedition for what some have criticized as incendiary rhetoric at the rally preceding the mob attack on the Capitol.

McCarthy labeled Trump’s actions that day reprehensible, but said “you would never be able to prove beyond a reasonable doubt that he intended force to be used.”

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