Updated January 14, 2021. The January 6 rioters had not been charged with sedition because of the difficulty in proving it. That changed when eleven Oath Keepers were indicted by a grand jury and were arrested on January 13. charged with seditious conspiracy for violent attempts to overthrow the government. and planning it. One element leading to the indictment and charges is that the Oath Keeper'sleaderhsip's encrypted conversations using the ap "Signal" were cracked. More frightening in the charging documents was not only did they plan for violence on January 6, they also had armed members ringing Washington DC ready to intervene with violence during and after January 6 with the purpose and training to foment not only a violent interference in the government process, including inauguration day but a civil war.. This is a serious game changer and a departure from the prior charges. It extends to those planning and leading the group who were not the ones entering the Capitol themselves. The burning question is did these Oath Keeper leaders communicate and plan with anyone in the White House or even with the President'sained close advisors with Trump's blessing. The special threat the Oath Keepers presented was that they claimed 20,000 "members" who were trained ex military, active and former law enforcement, and tr first responders. What gave them away was their preparation with gear ready for anticipated violence.and training in the midst of an out-of-control mob of middle aged white men following their lead. that was caught on video. They were prepared for a violent coup, not a stealthy one described by such legal advisers as John Eastman's infamous case for how to overturn the election by manipulating and distorting the established process under the pretext that the election was stolen. and they could make some sort of a legal case to justify their actions. The charges were not the sole design of the Department of Justice, but in federal criminal prosecution, they need the concurrence of a grand jury to indict and charge, as it was in this indictment of the Oath Keeprers leadership. Takeaways from the landmark sedition indictment against the Oath Keepers and why DOJ acted now - ABC17NEWS
Before this indictment, the attention had been focused on the actual violent attackers of the Capitol themselves and overcoming the defense that the accused had just been using their first amendment rights of free speech protected by the Constitution to redress grievances. (They ignored the "peaceful" word in that amendment). Imany prosecutors had attempted to charge a serious enough offense, a felony, with sufficient punishment to deter others from doing the same thing in the future. A series of lower federal court rulings have gone against the January 6 rioters' defenses. Among their rulings: violence is not free speech; interfering with official procedures is a felony crime.
Several recent federal court decisions have established that felonies were committed by interfering with official procedures and violence is not protected free speech regardless if it was used to make a political statement. This may come as a shock to 30% of the GOP who feel it is their constitutional right to use violence to overturn an election in the name of protecting democracy. The courts will not have your backs if you act on it and make it your defense argument.
Among those legal issues is whether violence to make a political point is protected free speech. In a recent case, the Proud Boys argued their violent acts were protected speech and the federal judge rejected their argument mostly on the basis that there were many other actions to protest protected by the First Amendment.
Why is it important that the crime committed is a felony and not a misdemeanor? Is interfering with an official government procedure a felony that triggers serious jail sentences to deter others in the future? Are those who fomented, encouraged, permitted the violent act also guilty of a felony? Felony convictions are important because misdemeanors do not trigger serious federal investigations and penalties are not much of a deterrent to future wannabe incidents like January 6. Recent court rulings are these are felonies.
Does it follow the president and his coup conspirators are guilty of the felonies, too? There is case law to that effect. That will be the legal case that could trip up Trump and his coup planners and this is the focus of the January 6 committee. The committee hearings will shed public light on the events of January 6 and may lead to legislation. Those charged so far with felonies or referred to the DOJ for criminal charges are the ones who refused to honor the committee's subpoenas and testify. The FBI and the Department of Justice could pursue such felony charges concerning any masterminds behind or directing the January 6 events, but so far have not shown much public enthusiasm to move forward on White House involvement.
The Jan. 6 rioters committed a felony by obstructing an official proceeding per recent rulings. On December 10, a Trump-appointed federal district judge ruled that it was a felony to obstruct an official proceeding. " On Friday, Dec. 10, the government won a key early ruling concerning a legal issue affecting hundreds of Jan. 6 Capitol Riot prosecutions. U.S. District Judge Dabney Friedrich found that a central felony charge in a large subset of the Jan. 6 cases—“corruptly obstructing an official proceeding” —had been properly invoked and was not unconstitutionally vague." (lawfareblog.com)
Other key federal court rulings have gone against the rioters from the ruling that violence committed on January 6 was indeed felonies, from assaulting police officers and attempting to stop an official procedure. Upheld was a conviction of a New Jersey rioter for assaulting the police on Jan.6 and the judge sentenced him to 44 months in prison: The judge ruling, in that case, cited both assaulting the police officer and obstructing an official procedure. “It’s such a serious offense under the circumstances, an affront to society and to the law, to have the Capitol overrun and to have this riot stop the whole functioning government, that I just find that it’s such a serious crime that I cannot give a below-guideline sentence.” Scott Kevin Fairlamb is the first person sentenced for assaulting a police officer in the Capitol attack.Scott Fairlamb is the first Jan. 6 Capitol riot - The Washington Post
. Capitol Riot: Proud Boys’ Free-Speech Defense Rejected by Judge - Bloomberg
. Lead Capitol riot charge is constitutional, judges find - The Washington Post
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