Seditious Conspiracy Is the Wrong Charge in the Capitol-Riot Prosecutions

Trump supporters storm the U.S. Capitol following a rally with then-president Donald Trump in Washington, D.C., January 6, 2021. (Samuel Corum/Getty Images)
Prosecutors are needlessly risking acquittal by filing inappropriate charges.


wo elements are indispensable to the crime of seditious conspiracy. First, there must be an agreement to use force, as opposed to protesting peacefully — even if rambunctiously. Second is the concept of levying war against the United States or opposing the lawful authority of the United States. Now that the Justice Department has been goaded into charging members of the Oath Keepers with seditious conspiracy for their participation in the Capitol riot, prosecutors may find that these elements pose insuperable challenges to their case.

The indictment filed Thursday necessitates revisiting this subject. It does not, however, change what I’ve already

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