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the national interest

RIP ‘No January 6 Sedition Charges,’ the Right’s Favorite Trump Defense

“Let’s base our entire defense on the lack of charges in an ongoing case.” Good plan!

Photo-Illustration: Intelligencer; Photo: Alex Kent/Shutterstock

Criminal charges, especially for complex planned crimes, often take a long time. Nonetheless, the failure of criminal charges for sedition to materialize very quickly after January 6, 2021, became a key talking point for Trump defenders. Yes, thousands of protesters including far-right paramilitary groups like the Oath Keepers invaded the capital, some using coordinated military tactics, in a shadowy effort to pressure Congress to invalidate the Electoral College results and hand Trump an unelected second term.

But, the Trump defenders insisted, it couldn’t have been an insurrection because nobody had (yet) been charged with sedition.

“Many in the media continue referring to ‘the insurrectionists’ rather than the rioters,” complained pro-Trump law professor Jonathan Turley in August. “After five months of dragnet arrests nationwide, a few reporters have noted that no one was actually charged with insurrection or sedition.”

Case closed!

Last October, Mark Levin, appearing on Tucker Carlson tonight, proclaimed, “Has anybody been charged with sedition? Nobody. Has anybody been charged with treason? Nobody. So why do they keep calling it an insurrection?”

As the anniversary of the insurr — er, militia-led crowd attempting to forcibly effect regime change arrived, conservatives have leaned harder and harder on the “no insurrection charges” talking point.

On January 5, Jeffrey Scott Shapiro wrote for The Wall Street Journal op-ed page, “Words have to have meaning, and the continuous mislabeling of the U.S. Capitol breach as an ‘insurrection’ is an example of how a false narrative can gain currency and cause dangerous injustice … Of the hundreds of ‘Capitol Breach Cases’ listed at the Justice Department’s prosecution page, not one defendant is charged with insurrection under 18 U.S.C. 2383. That’s because insurrection is a legal term with specific elements.”

Here was Ben Shapiro on January 6:

On Monday, the Federalist got extremely specific about the criminal-code violations that definitely would not be applied against any of the January 6 defendants:

If, as they have been alleging for a year now, this insurrection was really aimed at toppling the incoming Biden government and reinstating Donald Trump as president, then why have none of the more than 725 defendants been charged with “seditious conspiracy” under 18 US Code § 2384?


The statute provides that “if two or more persons … 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.”


Doesn’t that behavior sound exactly like what Biden, Harris, and the rest of the Democratic Party have claimed happened on Jan. 6? Didn’t a group of conspirators — egged on and perhaps even directly guided by former President Trump — take the Capitol by force in an attempt at destroying the government (as well as democracy itself)?

(Without spoiling anything, keep that very specific reference to the lack of a charge under 18 U.S. Code §2384 in mind as you read to the bottom.)

Pat Buchanan, the next day, echoed the theme:

​​Was Jan. 6 really comparable to Pearl Harbor and 9/11, during each of which 3,000 Americans went to their deaths in an hour’s time and major wars followed — as Vice President Kamala Harris said yesterday?

If so, why, a year after Jan. 6, 2021, has no one been charged with inciting a rebellion, sedition, treason, armed insurrection, plotting a coup, or a takeover of the government of the United States?

At 10:30 this morning, Brit Hume became probably the last major conservative pundit to get this opinion in under the wire, writing, “Here’s a thought. Let’s base our view on whether 1/6 was an ‘insurrection’ on whether those arrested are charged with insurrection. So far, none has been.”

A few hours later, the Justice Department charged 11 members of the Oath Keepers, a right-wing paramilitary group, with seditious conspiracy under, yes, 18 U.S. Code §2384.

Justice Department indictment of Stewart Rhodes, et al, pertaining to January 6, 2021. Photo: Department of Justice
RIP ‘No Sedition Charges,’ the Right’s Favorite 1/6 Defense