Attorney General Bill Barr’s critics rehash failed 1990s arguments.
Everything old is new again.
In a conference call last week, Attorney General Bill Barr urged federal prosecutors to be aggressive in filing charges against violent anti-American radicals who are rioting in various cities, attacking government buildings, and targeting law-enforcement officers. The AG reportedly recommended a range of offenses, including seditious conspiracy.
Instantly, according to the Wall Street Journal, “legal experts” warned that the “rarely used statute could be difficult to prove in court and potentially run up against First Amendment protections.”
These are the same arguments that legal experts posited when I charged terrorists with seditious conspiracy for bombing the World Trade Center and plotting to bomb other New York City landmarks in 1993. The experts were wrong then, and they are wrong now.
The seditious-conspiracy statute, which is codified by Section 2384 of the modern federal penal code, was actually enacted by Congress during the Civil War — mainly to deal with Confederate sympathizers in free states who were violently sabotaging the Union war effort. As the Journal’s experts observe, it is rarely used. That is not because the crime is especially difficult to prove; it is much more straightforward than many federal crimes. Rather, it is because the conduct at issue — dangerous conspiracies to levy war against the United States, to violently overthrow our government, or to violently oppose the government’s legitimate authority — is historically unusual.
Notice the thread that runs through these variations of conspiratorial behavior: Force. Keep that in mind and you will easily grasp why apprehensions about sedition charges are specious. Unless prosecutors can prove that the alleged conspirators agreed to use force against the government, there is no such crime.
The notion of prosecuting sedition is anathema to legal experts and some historians because it calls to mind the late 18th century Alien and Sedition Acts, which are justly reviled as an unconstitutional effort to punish political dissent. There is also understandable constitutional concern about the word sedition. Outside the criminal-law context, it can be broadly construed to cover speech that, though it urges people to revolt against a government, does not necessarily advocate violence.
But here, we are talking about the criminal-law context, and the distinction matters. To begin with, the word “sedition” does not appear in the “seditious conspiracy” statute. The adjective “seditious” is in the title, but it does not appear in the statute’s all-important charging language.
What matters in any criminal statute is how Congress has defined the proscribed conduct. In this instance, Congress has taken aim at forcible action against the nation qua nation, or its government qua government. To be precise, Section 2384 makes it a crime, punishable by up to 20 years’ imprisonment, for two or more people to conspire . . .
. . . to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, 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. [Emphasis added.]
Consequently, if people urge the end of the United States or the dissolution of its government, but they do not contemplate accomplishing these objectives by force, then there is no crime. And even if people do contemplate using force against others, including others who happen to be government officials, there is still no seditious-conspiracy offense unless force is to be used to attack the United States, or to destroy or impede the functions of the U.S. government.
Congress has proscribed a straightforward offense: Force must be used, or at least contemplated, with the specific intent to strike at the United States or its government. Therefore, the fact that the word “sedition” may be fraught with ambiguity and dark historical overtones is irrelevant.
In my terrorism case, this offense was not difficult to prove, and the defendants were duly convicted. We had abundant evidence of jihadists’ proclaiming that they were at war with the United States; that they intended to strike at political and financial targets in order to extort changes in American policy; and that they would attack government buildings and current and former government officials as part of their war against the country.
All those years ago, legal experts also cited the First Amendment as a supposedly fatal complication. The First Amendment protects freedom of conscience, the argument went, and jihadists were motivated by their interpretation of their religion. The First Amendment safeguards political speech to express dissent, and jihadists bitterly opposed American foreign policy and various aspects of American culture.
Again, this was a smokescreen. No one was being charged with having fundamentalists beliefs or harboring hostility to our country and its policies. The defendants were charged with conspiring to use force in prosecuting a war against our country and striking against our government. Their reasons for doing these things formed no part of the crime. As in any criminal case, statements indicative of purpose and motive factor in because they tend to prove beyond a reasonable doubt that defendants committed the charged acts with the requisite criminal intent. But Section 2384 targets violence, not beliefs.
Freedom of speech means the government may not make your speech illegal in and of itself, unless it falls within exceptions that were well known at the time the First Amendment was adopted (e.g., obscenity or incitement to violence). But the First Amendment has never been understood to immunize speech from being used as evidence of crimes.
Let’s say a mafia boss replies, “I hate that guy, whack him,” when the underboss asks what’s to be done about a rival mobster. The mobster is subsequently killed and the boss is charged with murder. At the trial, the boss has no viable First Amendment objection to the admission of his statement as evidence. He is being prosecuted for murder, not the statements; the latter are obviously proof of his motive and intention to commit murder — they are not the murder itself.
Similarly, if there is evidence that people are using force or plotting violent attacks against U.S. government installations, there is no viable objection to the introduction of evidence that they hated the United States and called for attacks against the government. The statements are not the crime; they are evidence of the crime, and the First Amendment does not prohibit their use as such. Judges, moreover, carefully instruct juries that people may not be convicted for holding unpopular beliefs; there must be proof beyond a reasonable doubt, in a seditious-conspiracy case, that they conspired to use force against the nation and its government. That’s the crime.
People who join in rioting are engaged in a form of domestic terrorism. They are likely to commit several federal crimes. Rioting itself is a federal crime (Section 2101) if people cross state lines to incite it or carry it out. I’ve recently addressed the Travel Act, which similarly involves crossing state lines to carry out crimes of violence. Arson and the use of explosives are also federal crimes.
If these forcible, lethally destructive acts are committed by people who are working together to make war against our country or attack our government, then seditious conspiracy is a perfectly apt offense to charge. It not only fits the conduct; it also allows prosecutors to charge the case in a framework that explains what the violent radicals are trying to accomplish. So Barr is right, and his critics’ arguments are as wrong as they were almost 30 years ago.