Although criminal law is an important guiding force, most criminal justice practitioners have a considerable amount of discretion how they do their job. For example, police (i.e., patrol officers) make decisions about whether they will stop, question, search, ticket, warn or arrest suspects. Correctional officers decide if they are going to intervene when they see inmates commit institutional infractions. And Prosecutors, typically with the assistance of a grand jury, make decisions regarding if it is worth their while to charge an individual or organization with a crime, and what types of crimes they suspect an entity to be guilty of.
This brings us to the recent case where the United States Department of Justice (DOJ) charged eleven people, members of the far-right Oath Keepers, with seditious conspiracy in connection with the January 6, 2021 insurrection.
Among the numerous questions that public has regarding the January 6th insurrection, we don’t specifically know why the DOJ prosecutors decided to charge these Oath Keepers with seditious conspiracy. In order to answer this question, we would need to directly ask the lead prosecutor and the team. And predictably they are not going to tell us why before a possible trial, and even if they were willing to talk to us, there is no guarantee that they will be honest.
That being said, historically prosecutors have been reluctant to use political crime kinds of charges because they open up lots of complications. Judges and juries are not familiar with these types of criminal offences; they are complicated to explain to a judge or jury, and thus in any charging document more weight is given to more typical kinds of crime (i.e., murder, attempt murder, etc.). More specifically, there is not a lot of precedent in recent years for these kinds of charges, nor convictions connected to them. And there are some pretty common defenses that are percolating in legal circles surrounding this case.
But a skillful prosecution should be able to convince a judge and jury that it’s not a matter of simply exercising free speech.
In short, prosecutors had to choose between sedition and treason and in some respects seditious conspiracy is a compromise charge. In short sedition is “Advocating (typically through speech other kinds of communications) the overthrow of a government.” (Ross, 2012, p. 41) And treason is, “Participating in the overthrow of a government (e.g., engaging in war against your own government, giving aid to enemies of your government)” (Ross, 2012, pp. 44-46).
More specifically, there are probably four reasons why seditious conspiracy charges may have been chosen for the Oath Keepers at this stage of the prosecutions against the Capitol rioters.
1. Over the past year, Democrats, or at least people who supported Biden, have been wondering why no explicitly political charges have been used against participants in the insurrection. The current charging may be a way to mollify this criticism.
2. The prosecution has charged the eleven Oath Keepers with a handful of other crimes and are likely to secure convictions on at least some of them, and the length of sentence is respectable (i.e., quite lengthy).
3. The seditious conspiracy charges may be a way for prosecutors to test these criminal cases to see how things work out because they will learn how to best apply them to bigger fish like former President Donald Trump and his inner circle.
4. Prosecutors may not have had sufficient evidence that they believed was necessary to convict the Oath Keepers until now. Prosecutors have laid charges against the so-called low hanging fruit. And they may be methodically building their case (or at least we hope so) against more important players in the January 6th insurrection.
Other than that we will need to wait and see how these charges play out and what kinds of behind the scenes deals the accused and their lawyers make with federal prosecutors. This will give us a taste of what is to come.
By Myotus – Own work, CC0, https://commons.wikimedia.org/w/index.php?curid=104620894