Reprinted with permission from Daily KosCon
The right-wing gaslighting emanating from Tucker Carlson's realm and Congressional Republicans about the January 6 insurrection at the U.S. Capitol has suggested that because federal prosecutors haven't yet charged any of the 600-plus people arrested with terrorism or insurrection, those terms don't describe the attack on Congress. But that claim now sounds hollow, after a search warrant this week revealed the FBI is currently pursuing a "seditious conspiracy" investigation against the insurrection's key players.
The investigation's direction was revealed when the FBI seized the phone of an attorney who serves as general counsel for the Oath Keepers—a "Patriot" organization that played a leading role in the Capitol siege—and their founder/president, Stewart Rhodes, around whom investigators have been circling for months. The Oath Keepers attorney, Kellye SoRelle of Texas, told HuffPost's Ryan Reilly that her phone was "kind of a repository of truth." Via email she told Reilly, "I have so much information in there, [it's] nuts."
The FBI's warrant, according to Mother Jones, sought evidence related to potential violations of nine criminal statutes, including "seditious conspiracy." The other violations are all crimes for which the January 6 defendants have already been charged, including destruction of government property, trespassing, destruction of evidence, false statements, and obstruction of Congress.
As Marcy Wheeler has pointed out repeatedly at her blog Emptywheel, the latter charge has been federal prosecutors' chief means of charging the insurrectionists because a conviction carries the same 20-year federal prison sentence as sedition, which is a harder charge to prove. Moreover, it carries a terrorism enhancement that can be applied at sentencing, just as sedition does.
If you don't mention obstruction — and your sources don't explain that obstruction will get you to precisely where you'd get with a sedition charge, but with a lot more flexibility to distinguish between defendants and a far lower bar of proof (unless and until judges decide it has been misapplied) — then your sources are not describing what is going on with the investigation.
This is why the insistence that the January 6 siege was not "terrorism" or an "insurrection" because the words don't appear in charging documents utterly misapprehends how the federal government prosecutes crimes of domestic terrorism.
Eric Halladay and Racheal Hanna explained how this works at Lawfare Blog: "Because there is no specific crime of domestic terrorism, federal prosecutors may use an array of charges when pursuing domestic terrorists," they write.
These include some 57 different offenses that can be charged as terrorism, including a number of which the insurrectionists have been accused, such as malicious destruction of property and willful depredation of federal property. But the primary tool that prosecutors use is a terrorism enhancement that can be applied during sentencing:
The enhancement can be applied to federal crimes of terrorism … but, importantly, it can also be applied to non-terrorism offenses where the offense was intended to influence government conduct by intimidation or coercion or was intended to promote a federal crime of terrorism with the intention of intimidating or coercing a civilian population.
As Wheeler notes, "charging January 6 rioters with obstruction provides DOJ a really elegant way of holding people accountable, while providing the flexibility to distinguish between different levels of seriousness (until such time as some judge overturns this application of 18 USC 1512)."
The federal judges overseeing the case, in fact, have recently raised the issue of whether obstruction of Congress is the right charge in these cases. During this week's hearing before District Judge Amit Mehta for charges against the Oath Keepers, the judge questioned prosecutors about the applicability of that particular law in this case, as New York Times legal correspondent Alan Feuer reported on Twitter.
Mehta pointed out that the law, 18 USC 1512, was originally passed as part of the 2002 Sarbanes-Oxley Act, which was primarily corporate reform legislation. The law, he said, seemed primarily designed to stop obstructive acts like document shredding and witness tampering. Prosecutors replied that the statute's use of the word "corruptly" fits the actions of the insurrectionists. Eventually, Mehta appeared to agree, though the issue of appropriateness remains in the air.
As Feuer observed: "Judge Mehta is now the second federal judge to wonder if the [government's] 1512 obstruction charge, designed to punish crimes like witness tampering [and] document destruction, is a good fit for the [January 6] riot. Judge Randolph Moss had very similar concerns at a hearing last month."
Wheeler observes that this may be why investigators are now examining potential "seditious conspiracy" charges in the Oath Keepers case: "I've said that if DOJ's use of 1512 fails, they'll charge the most serious culprits with seditious conspiracy. This may be the first sign of that," she tweeted.
SoRelle complained about the FBI's seizure of her phone to reporters. "[T]hey have all my clients and my comms," she told Mother Jones. "[It's] unethical as shit on their part."
On Twitter, SoRelle has claimed that she's under attack by the "deep state" because of her involvement with Mike Lindell.
As Mother Jones notes, the reference to sedition charges in the SoRelle warrant does not mean anyone will face sedition charges, but it is an official acknowledgment that the FBI is investigating the possibility that sedition was committed. And as Reilly notes: "Executing a search warrant against a lawyer triggers protocols within the Justice Department, and the move to seize SoRelle's phone would have required approval from high-ranking officials at the DOJ."
SoRelle messaged Reilly that she had met with two law enforcement officials at her home and then went to a "Krogers/Starbucks," where they chatted for several hours.
"I have so much stuff in there," she wrote. "They either think I am the mastermind, or they wanted a free dig through everything―either way, it is unethical."
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