Some Capitol rioters could face seditious conspiracy charges

NEW YORK - Michael Sherwin, the former acting U.S. attorney who oversaw the Capitol riot prosecutions until this month, told CBS 60 Minutes on Sunday that sedition charges could be coming to some of the insurrectionists.

The federal seditious conspiracy law makes it a crime "if two or more persons… conspire… to oppose by force the authority [of the Government of the United States], or by force to prevent, hinder, or delay the execution of any law of the United States."

Harry Litman, a former U.S. attorney and host of the Talking Feds podcast, said members of white nationalist groups that took part in January's Capitol siege, like the Proud Boys and Oath Keepers, will be prosecutors' prime targets for the seldom-used law, which carries a sentence of up to 20 years in prison.

The charge, Litman said, "is a big bat to use," but he thinks prosecutors "will have a pretty strong case."

Omar Abdel-Rahman, the so-called Blind Sheik, was convicted of seditious conspiracy for planning the 1993 World Trade Center bombings. And so were a group of Puerto Rican nationalists after they stormed the Capitol and shot five congressmen in 1954.

"Historically, these charges have been much more successful against people who were not white, and people that have affirmative stances against the government of the United States," said Jacob Schulz, the deputy managing editor at Lawfare.

Indeed, in 2010, a federal judge in Michigan threw out a case against nine members of the Hutaree Christian nationalist militia group, citing insufficient evidence.

But Litman said there is no shortage of evidence against the Jan. 6 rioters, and the federal government's prosecutorial priorities have adapted to the day's more pressing threats.

"What we have now — and the Department of Justice under [Attorney General] Merrick Garland makes it their number one priority — is domestic extremist conservative race-driven terrorism," Litman said.