What happened in Washington, D.C. yesterday does not “border on” sedition. It is sedition. Here is the language of the applicable statute, 28 United States Code section 2834, entitled “Seditious Conspiracy”:
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
Every insurrectionist who forced their way into the Capitol is guilty of a crime. Many of them are easily identifiable, either through video of the event or through social media. Whether their leaders, including Josh Hawley, Ted Cruz, and Louie Gohmert, can be proved to have incited this violence is an open question. Gohmert is probably the most easily prosecutable of these three. Hawley’s raised fist in solidarity with the insurrectionists may not be enough to convict him, but it is grotesque and should end his political career.
It is less difficult than one might think to prosecute Donald Trump under this statute. He has repeatedly endorsed violence. He promised yesterday’s rally would be “wild.” There are reports that White House staff were “freaked out” yesterday when he showed enthusiasm for the storming of the Capitol because it meant certification of the election results would be derailed. He did nothing to try to restore order. In fact, he refused to activate the National Guard despite repeated requests; ultimately the Vice-President had to give the order. There is little doubt that Trump wanted this riot.
If there are no prosecutions—if we decide to “move on” because we can’t take any more of this—then we normalize political violence. If it is okay this time, it is okay next time. The rule of law means nothing if the law is not enforced. It means very little if only the lowest-ranking foot soldiers in this conspiracy are prosecuted. There must be a good-faith effort to identify the most powerful individuals against whom cases can be proven and bring them to the bar of justice. Their status as elected officials gives them no quarter. They are not above the law.
Unless we fail to act. Then they are above the law, and they will know it. Just as Trump learned from the result of his impeachment that he can get away with subverting the interest of the nation to his own political interest, the people who fomented this insurrection will be emboldened to try again. It won’t happen tomorrow, but it will happen. It may happen in 2022, when they refuse to accept their defeat at the polls. It will happen in 2024, when they again try to overturn the results of a free and fair election because they know there are no consequences for sedition.
Criminal prosecutions are not an option. They are a necessity. The preservation of the Republic depends on it.