U.S. Attorney General Bill Barr encouraged federal prosecutors at a conference to aggressively prosecute violent rioters, including by levying sedition charges against those rioters, according to sources familiar with the conference who spoke with the Wall Street Journal.
Sedition is a rarely used charge that entails plotting to overthrow the government. U.S. attorneys typically have broad discretion in how they charge suspects. The use of sedition charges would demonstrate an expanded effort by Barr’s Department of Justice to crack down on violence stemming from months of demonstrations after the death of George Floyd in May.
While state charges may apply to many people arrested in connection with demonstrations, two sources said Barr urged prosecutors to seek federal charges whenever they may be possible.
Fireworks, incendiary devices and explosives have been used against federal property during riots in recent months. More than 200 people have reportedly been arrested and charged with violent crimes related to civil unrest. According to the Journal, many of those arrested face charges for arson, assaulting federal officers, or gun crimes.
Sedition charges can yield punishments of up to 20 years in prison for those convicted. Successfully prosecuting sedition charges, however, can come with challenges, according to the Journal.
To succeed with a sedition case, prosecutors would need to prove there was a conspiracy to attack government agents or officials and that the discussion represented an imminent danger. Legal experts who spoke with the Journal said there can be a fine line between merely expressing anti-government sentiments, which would likely fall under First Amendment protected speech, and plotting to attack government agents in a manner that rises to the level of seditious plotting.
The FBI officials have also stated many of the people arrested in connection with violent rioting and attacks on federal agents and property are merely acting in an “opportunistic” fashion.
“Most of what we’re seeing is just that opportunistic individual that’s taking advantage of the peaceful protests, almost as cover as a way to conduct their criminal behavior,” Jill Sanborn, assistant director for the Federal Bureau of Investigation’s counterterrorism division, said in a June review of cases, previously reported by the Journal.
Sedition charges were brought against a Michigan-based militia group who were accused in 2010 of plotting to kill a local police officer in an effort to set off an armed clash with state and federal officers. Prosecutors ultimately failed to successfully prosecute those charges and a federal judge determined the case relied on “circumstantial evidence” and not a “concrete agreement to forcibly oppose the United States Government.”
In addition to sedition charges, federal prosecutors may more frequently rely on a statute that allows them to federally charge demonstrators who obstruct law-enforcement officers responding to unrest. While this statute is also rarely used, federal prosecutors did use the statute to charge three people accused of throwing a Molotov cocktail at New York City police vehicles during protests. All three suspects have pleaded not guilty in that case.