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.
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.