Are the January 6 rioters traitors? So far criminal charges say no
CHICAGO – Plotted to block certification of Joe Biden’s election victory: Check. Discussed bringing weapons to Washington to help plan: Check. Has succeeded with the co-insurgents, if only temporarily, in preventing Congress from fulfilling a vital constitutional duty: Check.
The charges against Jan. 6 rioter Thomas Caldwell certainly seem to fit the charge of sedition as it is generally understood – incitement to revolt against the government. And the possibility of indicting him, along with others, has been widely discussed after thousands of pro-Trump supporters assaulted dozens of police officers, disfigured the U.S. Capitol, and sought lawmakers to stop certification. Some have called their actions betrayal.
But to date neither Caldwell nor any of the 500 other defendants charged in the attack have been charged with sedition or the most serious crime a citizen could face: treason. And as more and more minor charges are laid and defendants plead guilty, those charges may never formally stand up.
Some legal scholars say sedition charges might be justified, but prosecutors may be reluctant to bring them because of their legal complexity and the historical difficulty of securing convictions. Overzealous application for centuries has also discredited their use. And defense attorneys say discussions of such charges only add to the hyperbole around the events of that day.
Overall, the bar for proving sedition is not as high as for the related treason charge. Yet accusations of sedition have been rare.
The last time U.S. prosecutors brought such a case was in 2010 in connection with an alleged Michigan plot by members of the Hutaree militia to incite an uprising against the government. But a judge ordered the acquittal of the sedition conspiracy charges in a 2012 trial, saying prosecutors relied too heavily on hateful rants protected by the First Amendment and failed, as required, to prove that the accused had already had detailed plans for a rebellion.
One of the last successful convictions for seditious conspiracy stems from another, now largely forgotten, storming of Capitol Hill in 1954, when four Puerto Rican nationalists opened fire on House floors, injuring five representatives.
Treason is one of the few crimes specifically defined in the Constitution. It is defined as “waging war” against the United States or “bringing aid and comfort” to its enemies. Legal scholars say the Founding Fathers, who were themselves accused of treason by the British, sought to articulate it clearly because they knew it could be wrongly applied to legitimize dissent.
In a landmark 1807 decision, Chief Justice John Marshall wrote that betrayal required a citizen to go to war with the United States, not just to think through or plan for it. Even recruiting and training rebels for war, he argued, is no betrayal if the war is never started.
In US history, the government has convicted less than 10 people of treason, according to the FBI.
Among the latest cases of treason was American Iva Toguri D’Aquino – known as “Tokyo Rose” during World War II for her anti-American broadcasts – convicted in 1949 for “help and comfort” in Japan. President Gerald Ford pardoned her in 1977 after US authorities pressured witnesses to lie.
The only American accused of treason since the World II era was Adam Gadahn, indicted in 2006 for bringing “aid and comfort” to al-Qaida. Before being tried, he was killed by an American drone strike in Pakistan.
Carlton Larson, professor of law at the University of California and author of “On Treason: A Citizen’s Guide to the Law”, has ruled out the betrayal of the January 6 rioters. But he thinks some may claim a seditious conspiracy provision to “hinder” the enforcement of US law. “I think it adapts easily,” he said.
Last summer, then-Deputy Attorney General Jeffrey Rosen sent a memo authorizing federal prosecutors to review sedition charges against police reform protesters, particularly in Portland, in the Oregon, where clashes between rioters and federal officials raged outside a federal courthouse. It has never been used.
But the memo said the Justice Department believed the law did not require proof of a conspiracy to overthrow the government and could also be used when a defendant attempts to oppose government authority by strength.
In the weeks following the attack on Capitol Hill, federal prosecutors said they were reviewing all possible charges. On March 17, Washington’s Acting US Attorney Michael Sherwin told CBS “60 Minutes” that prosecutors were considering seditious conspiracy charges against some rioters.
“I believe the facts support these accusations,” Sherwin said. “And I think as we move forward, more facts will support that.”
He first raised the possibility in January, saying a panel of prosecutors was considering whether they would apply to rioters. The Justice Department did not respond to questions about what happened to this group or why no sedition charges were laid. And Sherwin’s comments were criticized by a federal judge and defense attorneys who said it was inappropriate to publicly discuss ongoing investigations. He left the Department of Justice soon after.
The Justice Department continues its work to pursue a record number of cases. But so far they have opted for relatively mundane charges, like entering a restricted area and obstructing formal proceedings. Caldwell faces these charges, as well as a conspiracy, which, like sedition, carries a maximum prison sentence of 20 years. Treason is punishable by death.
He was charged alongside other members and associates of the far-right extremist group Oath Keepers with conspiring to block the certification of the vote. He later boasted in a message to a friend that he grabbed an American flag, joined the crowd that poured into the Capitol and said “let’s storm the place and hang the traitors.” The 65-year-old from Virginia told his friend: “If we had had guns, I guarantee you we would have killed 100 politicians.
Defense lawyers say hyperbole was the hallmark of the January 6 lawsuit.
“If grandiose rhetoric was proof, the government’s thesis would be very strong,” Caldwell’s attorney David Fischer wrote in a filing. He did not respond to a message requesting comment.
In the documents filed, Fischer also said prosecutors took his client’s comments out of context to falsely accuse a suffering 20-year military veteran. He said Caldwell, like many veterans, was prone to antics and liked to portray himself by recounting his actions on January 6 as a movie character picking up a battle flag to lead the charge.
Fischer also this month asked Caldwell’s judge in Washington to move Caldwell’s case to another city on the grounds that Sherwin’s comments about the sedition would harm jurors.
On January 5, another rioter, Guy Reffitt, reportedly spoke of “pulling … people out of the Capitol by the ankles” and installing a new government. The 48-year-old Texan prepared for battle on January 6, carrying a gun and bulletproof vest as he crossed the Capitol Police lines as officers shot him with rubber bullets , prosecutors said.
Charges against Reffitt include entering a restricted building with a deadly weapon, as well as obstructing justice by threatening his teenage children. The oil industry consultant reportedly told them later in January that they would be traitors if they returned it. He added: “The traitors are being shot.
In an unapologetic note written from prison and filed in court in May, Reffitt denied that there had ever been a conspiracy and provided a chilling reason.
“If the overthrow (of the government) was the quest,” Reffitt wrote of Jan. 6, “he undoubtedly would have been overthrown.”
– Michael Tarm, Michael Balsamo and Alanna Durkin Richer