DOJ Targets Proud Boys, Expanding Its Sedition Probe

By Richard Dahl on June 10, 2022

Sedition is extraordinarily difficult to prove.

It's been nearly three decades since federal prosecutors have gotten a conviction on the charge. So, now that the Department of Justice has charged individuals in two far-right organizations with seditious conspiracy in connection with the riot at the U.S. Capitol on Jan. 6, 2021, it sends a serious message.

To prove sedition, prosecutors need to show that the defendants intended to overthrow the government by force. In January, the DOJ charged 11 leaders of the Oath Keepers with doing that, and on June 6 DOJ filed the same charge against five leaders of the Proud Boys.

What Comes Next?

Since the attack on the Capitol, more than 850 participants in the events of that day have been arrested. But as the months passed following the riot, some Americans grew restless that Attorney General Merrick Garland didn't appear to be going after any big fish connected to the event.

In early January this year, Garland responded by saying the pace of the investigation was by design. The first step, he said, was laying a broad foundation by investigating "overt actors" who can provide leads to other "less overt" ones.

It sounded like more serious charges would be coming soon, and that is exactly what happened. On Jan. 13, DOJ unsealed the indictment of Stewart Rhodes, the founder and leader of the Oath Keepers militia, and 10 of his deputies for their roles in orchestrating the Capitol assault. The indictment charged them with seditious conspiracy, the first time prosecutors had leveled such a charge in 10 years.

Then, on June 6, DOJ showed that it was not done. A federal grand jury returned an indictment charging five leaders of the Proud Boys with seditious conspiracy. DOJ said in a statement that the five Proud Boys had "conspired to prevent, hinder, and delay the certification of the Electoral College vote, and to oppose by force the authority of the government of the United States."

What Is Sedition?

Federal law says that sedition charges may be warranted when two or more people:

  • Conspire to overthrow or destroy by force the government of the U.S.
  • Oppose by force the authority of the government; or to prevent, hinder, or delay by force the execution of any law in the U.S.
  • Take, seize, or possess by force any property of the U.S. "contrary to the authority thereof"

Sedition is a serious charge carrying a penalty of up to 20 years in prison. But the task facing prosecutors who hope to gain a conviction is a tough one.

The biggest obstacle is proving that the defendants actually conspired to use force. It is not enough for prosecutors to show that someone advocated the use of force, which is protected by the First Amendment.

The last time the government sought a sedition conviction was 10 years ago when it went after a Christian nationalist militia called Hutaree, whose nine members talked about killing police officers. A judge threw out the sedition charges and other serious charges and acquitted seven of the nine defendants. The remaining two defendants pled guilty to standard federal weapons charges and were sentenced to two years of court supervision.

The judge wrote that while the government did prove that the Hutaree had strong anti-government views, it left the court to "guess what defendants intended to do with their animosity."

The Case Against the Oath Keepers and the Proud Boys

The goals of the defendants facing sedition charges for their roles in the storming of the Capitol, however, appear far more real.

In its indictment against the Oath Keepers, DOJ says that the defendants:

  • Prepared for and coordinated travel to Washington, D.C., and created teams trained in using weapons if necessary that day
  • Used website, text messaging, and social media to communicate with co-conspirators before and during the insurrection
  • Engaged in planned efforts to breach the Capitol grounds wearing paramilitary uniforms with Oath Keepers patches
  • Created "quick reaction force" teams that stood by elsewhere that day in preparation for transferring firearms and other weapons to the scene if needed

The June 6 Proud Boys indictment states that the defendants:

  • Created a Ministry of Self-Defense weeks before the attack aimed at using force to halt the proceedings in the Capitol on Jan. 6
  • Mobilized, directed, and led members of the crowd into the Capitol building, leading to the destruction of property and assaults on police officers
  • Claimed credit for what happened

On June 9, a Congressional investigation into the events of the Capitol attack will begin. Technically, there is no connection between that investigation, which will be aired on prime-time TV, and DOJ's actions. But certainly, there will be evidence before the House committee — and the viewing public that will be tuning in — of the role played that day by the Oath Keepers and the Proud Boys.

Given the historical record, prosecutors may not succeed in putting the Oath Keepers and Proud Boys behind bars for sedition. But when the House committee concludes its investigation in the coming weeks and after the Oath Keepers and Proud Boys stand trial later this year, at least we may have a better understanding of what really happened that day.

There's a reason why prosecutors rarely charge people with sedition: It's hard to prove. Does that mean that prosecutors have strong evidence to bring that charge against two right-wing groups that orchestrated the attack on the Capitol? It might. But will it work?

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