A sentencing for a sedition conviction in the Jan. 6 attack on the Capitol spotlights subtle differences within a suite of related criminal offenses.
At the heart of the case against Stewart Rhodes, the Oath Keepers leader who was sentenced on Thursday to the longest prison term yet in connection with the Jan. 6 attack on the Capitol, was a rare and serious charge: seditious conspiracy.
Although people have sometimes colloquially used terms like sedition, insurrection, domestic terrorism and treason interchangeably when discussing the events of Jan. 6, 2021, seditious conspiracy is legally distinct from the other terms in subtle but important ways. Here is a closer look.
It is essentially the incitement of violent action against the government — some kind of communication or activity aimed at getting people to overthrow the state by force or to prevent it from carrying out its authority to enforce the law.
It is a federal crime found in Section 2384 of Title 18 of the United States code. That law makes it a crime for two or more people to actively plot to overthrow by force the federal government, to levy war against it, to unlawfully seize federal property or “by force to prevent, hinder or delay the execution of any law of the United States.” A conviction carries a sentence of up to 20 years in prison.
In the Oath Keepers case, prosecutors marshaled text messages, videos and other evidence to argue that Mr. Rhodes and other militia members had agreed to take steps to block Congress from certifying Joseph R. Biden Jr.’s Electoral College victory, a crucial step in the constitutional system for the normal transfer of power. Mr. Rhodes received 18 years in prison, and one of his top deputies was sentenced to a 12-year term.
While they clearly overlap, “sedition” centers more on plotting and incitement, whereas “insurrection” is generally understood to mean the actual violent acts of an uprising aimed at overthrowing the government.
That said, the federal law against insurrection, Section 2383, slightly blurs that line. It says that “whoever incites, sets on foot, assists or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto” is guilty of that offense. Its penalty is up to 10 years in prison and disqualification from holding federal office.
Insurrection charges are considered difficult to prove and are exceedingly rare. While many people have called the events of Jan. 6 an “insurrection,” the Justice Department has not charged any rioters with that crime. In addition to the handful of seditious conspiracy charges against members of two militias, the Oath Keepers and the Proud Boys, prosecutors have charged various rioters with such crimes as assaulting police officers, obstructing an official congressional proceeding and trespassing.
There is no stand-alone crime of domestic terrorism, but it still has a legal definition and consequences. In this case, the judge imposed a sentencing enhancement on Mr. Rhodes, ruling that the context of his crimes met the definition of terrorism: crimes of violence that are intended to intimidate or coerce a civilian population or government policy.
The law that defines terrorism distinguishes between “international” terrorism, which must have a foreign or transnational nexus, and “domestic” terrorism, which occurs primarily on American soil. Only “acts of terrorism transcending national boundaries” are federal crimes.
For their domestic equivalent, law enforcement officials instead deal with such offenses using other laws that do not have “terrorism” in their labels — like seditious conspiracy. But at the sentencing phase, convictions for offenses that also qualify as terrorism prompt a longer prison term.
As a matter of American law, the events of Jan. 6 were not treasonous because they did not involve acts that betrayed the United States on behalf of an enemy power.
Treason is a unique crime in the United States because it is the only one defined in the Constitution, and the founders wrote it narrowly: “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” In a federal statute, Section 2381, Congress echoed that definition and imposed a sentence of between five years in prison and death.
Treason charges are rare, but one example came in 2006 when prosecutors obtained a treason indictment against Adam Gadahn, a California-born Qaeda propagandist who called in videos for attacks on Americans. He was killed in a 2015 drone strike and so never faced trial.