Sedition, Insurrection, and Terrorism — Defining the terms of the Capitol Riots on January 6
In all of the chaos that occurred at the Capitol on January 6, and as we’ve tried to sort through the aftermath, we’ve heard a lot of weighty words thrown around — sedition, insurrection, terrorism, coup, and more. While these terms have often been used interchangeably in news coverage and in the general discourse, and their dictionary definitions often overlap, they are delineated very specifically in federal law. We thought it would be helpful to break down and define these terms, and discuss how they might apply to what we know about the events of January 6, 2021.
“Sedition” is defined in the dictionary as the “incitement of discontent or rebellion against a government,” or “any action, especially in speech or writing, promoting such discontent or rebellion.” Although there is no federal crime of “sedition” specifically, 18 U.S. Code Section 2386 defines a “seditious conspiracy” as agreement between two or more people to overthrow, put down, or destroy the government of the United States; or “by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.” The sentence for seditious conspiracy is up to 20 years.
It seems clear that the actions of many, if not all, of the participants in the riots at the Capitol could fit into the category of seditious conspiracy. Blog entries and social media posts well before the event encouraged rioters to storm the Capitol, even providing maps of the building. On January 6, users on right-wing platforms such as Gab and Parler coordinated their efforts to overpower law enforcement and, in some cases, to attempt to hunt down Vice President Mike Pence once in the building. Significant property of the U.S. government was harmed, destroyed or stolen. And all of this was done in an attempt to prevent Congress from executing its Constitutional duty to certify the Electoral College vote — i.e. “to prevent, hinder or delay the execution of [a] law of the United States.” So it seems to us that seditious conspiracy is a federal crime that was likely committed by many of those who stormed the Capitol and possibly by those who incited and encouraged them. (More on “incitement” later.)
While sedition is defined in the dictionary as incitement to rebellion, “insurrection” is defined as the act of rising in revolt or rebellion against an established government. There is a federal crime that applies to “insurrection or rebellion”: 18 U.S. Code Section 2383 states very clearly 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, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”
There appears to be some overlap between the laws on seditious conspiracy and rebellion or insurrection — they are clearly closely related. But whereas the code on seditious conspiracy refers specifically to efforts to prevent the execution of U.S. law, the section on rebellion or insurrection is defined more broadly against “the authority of the United States or the laws thereof.” Again, it seems to us that those who stormed the Capitol in an attempt to prevent or delay Congress’ confirmation of President-Elect Joe Biden were doing exactly that. We anticipate that rioters will argue that they were not attempting to overturn the government’s authority, but rather that they were actually trying to get the government to enforce its authority — to stop the confirmation of Biden’s “unlawful” election. That argument is defined by flawed and circular logic, and could justify just about any domestic uprising against the government (for history buffs, think Whiskey Rebellion). On balance, we think that many of the rioters and those who incited them may have violated Section 2383. It is also worth noting that there are multiple reports that officials at the Department of Defense, as well as others in the administration, may have hampered the efforts of the governor of Maryland to send in National Guard troops to quell the riot. If those officials knew that lives were in danger, but withheld approval for Governor Larry Hogan to send in his troops because they believed that they were helping President Donald Trump, this too could be considered insurrection.
“Treason”, as defined in the criminal code, does not seem to apply here. 18 U.S. Code Section 2381 punishes those who owe their allegiance to the United States but nevertheless levy war against the United States, adhere to its enemies, or give aid and comfort to those enemies. As shocking as the events of Wednesday were, and despite some overt references to the Confederacy, they more than likely do not constitute levying war against the United States. That said, treason is defined in the dictionary as “the offense of acting to overthrow one’s government” or “a violation of allegiance to one’s sovereign or to one’s state.”
“Terrorism”, on the other hand, pretty clearly seems to apply. 18 U.S. Code Section 2331 defines domestic terrorism as activities that “involve acts dangerous to human life that are a violation of the criminal laws of the United States,” and/or appear to be intended to “coerce a civilian population,” “influence the policy of a government by intimidation or coercion,” or “to affect the conduct of a government by mass destruction, assassination, or kidnapping.” The actions of the rioters seem to fit at least one, and in many cases all, of these criteria.
A “coup” is defined in the dictionary as “a sudden, violent, and illegal seizure of power from a government.” It would seem that 18 U.S. Code Section 2385, on advocating overthrow of a government by force or violence, would be the most relevant section of the law to this term — however, the word “coup” does not appear in the text. And like insurrection, applying this term legally might be difficult. It seems that, if the rioters were attempting to overthrow a government, it would be the incoming Biden administration. But because Biden has not been inaugurated yet, from a legal standpoint, it would be hard to argue that this was an attempt to seize power from his administration. And again, rioters would likely argue they were trying to force the sitting government to enforce its authority, rather than overthrow it. That said, it is hard to come up with three words that more succinctly describe the riots of January 6 than “sudden, violent and illegal.”
Finally, “incitement” is an important legal concept that would be integral to any legal action taken against elected Republican officials who used their office to perpetuate the lies that led to these riots. While the dictionary definition of incitement s fairly broad — “the action of provoking unlawful behavior or urging someone to behave unlawfully” — 18 U.S. Code Section 2102 is careful to spell out what it means to “to incite a riot.” The law states that incitement “includes but is not limited to” the urging or instigation of a riot, but “shall not be deemed to mean” the mere advocacy of ideas, or expression of belief, in support of the right to riot. In other words, there must be clear evidence that riotous behavior was advocated for, not just that such behavior was justified.
Thus, incitement may be hard to prove. While dozens of Republicans (Senators Josh Hawley and Ted Cruz immediately come to mind) continued to stir up their base with lies and falsehoods about a stolen election and the government’s power to undo it, those comments would likely fall under the rubric of beliefs that justify violence, rather than direct incitement of it. Even so, many in the GOP came very close to crossing that line. Before the rally on January 6, Congressman Louie Gohmert declared that court rulings against the Trump campaign meant that “basically, in effect, the ruling would be that you gotta go to the streets and be as violent as antifa and BLM” — Gohmert has since argued that this was the message of the courts, not his own. At the rally itself, Donald Trump Jr. warned GOP elected officials that “If you’re gonna be the zero and not the hero, we’re coming for you and we’re going to have a good time doing it!” — but he would likely argue he was speaking in the context of supporting primary candidates running against them. Actually, Rudy Giuliani may be most in danger of being charged for incitement, after he said this at the rally: “If we’re wrong, we will be made fools of. But if we’re right, a lot of them will go to jail. So let’s have trial by combat.”
As for the President, he was quoted at the rally as saying, “I know everyone here will soon be marching over to the Capitol building. To peacefully, patriotically make your voices heard” — but he also had plenty of more incendiary lines such as: “When you catch somebody in a fraud, you are allowed to go by very different rules.” There is also evidence that when the President tweeted that “Mike Pence didn’t have the courage to do what should have been done to protect our Country and our Constitution,” that was what spurred his supporters to begin chanting for him to be hanged. Additionally, it has been reported that both Rudy Giuliani and President Trump were attempting to pressure GOP senators to continue to stop the vote certification process while those senators were hiding from rioters who were in the Capitol building — this, along with his praise for the rioters in various tweets that day, could potentially be evidence of Trump’s incitement of, and participation in, seditious conspiracy and insurrection. And at least one rioter — Jacob Anthony Chansley, the man wearing a bearskin headdress — told the FBI he came to Washington “as a part of a group effort…at the request of the President that all ‘patriots’ come to DC on January 6, 2021.” It is likely that more quotes like this will emerge in the coming days and weeks.
In summary, there is a strong case to be made that those who stormed the Capitol, and anyone who helped them plan and/or egged them on, could be charged with seditious conspiracy, insurrection and terrorism. It also seems clear that multiple Republican officials incited this violence in the literal sense of the word, and that the rioters were in effect attempting a coup — but it would likely be difficult to define their words and actions as such in a court of law.