Recent convictions of high-profile defendants in Jan. 6, 2021, cases may tempt prosecutors to pursue charges of “seditious conspiracy” against former President Donald Trump in connection with unrest at the U.S. Capitol, legal analysts say.
Yet Trump appears to have strong plausible defenses to such a charge. And prosecutors risk stoking more political backlash if a Democrat-led administration presses a federal case against the leading Republican presidential candidate.
State-level “false business records” charges have already been brought against Trump in New York. A second state prosecution could follow over Trump’s opposition to the 2020 election tallies in Georgia. Democrat prosecutors oversee both cases, fueling Trump’s contention that the probes are politically motivated.
Meanwhile, at the federal level, Special Counsel Jack Smith has been investigating Trump on two fronts: alleged mishandling of classified documents at his Mar-a-Lago residence in Palm Beach, Florida, and Trump’s actions surrounding Jan. 6.
Although Trump could also be vulnerable to charges stemming from “document-gate,” rumblings about Smith pursuing a Jan. 6-related indictment of Trump have intensified following recent events.
In May, leaders of right-wing groups were convicted and sentenced for their roles in the Capitol breach. Citing concerns about Smith’s probes, Trump’s lawyers sent a letter asking for a meeting with U.S. Attorney General Merrick Garland, who appointed Smith days after Trump announced his 2024 presidential campaign.
‘Peaceful’ Admonition a Defense
Former law professor Rob Natelson, a senior fellow at the Independence Institute, a Colorado-based libertarian think tank, thinks prosecutors would probably have a tough time proving a seditious-conspiracy case against Trump.
“Former President Trump is on record as telling his supporters to proceed peacefully to the Capitol,” Natelson pointed out in a May 26 interview with The Epoch Times.
Legal scholar Rob Natelson.(Independence Institute)Trump’s urging for a massive crowd to march “peacefully and patriotically” appears to contradict accusations that Trump was trying to incite a violent attack against the U.S. government during the waning days of his presidency, Natelson said.
“I should mention: I’m no particular Trump apologist, you know. I don’t support him for reelection, for example,” Natelson said. “But I do think it’s ridiculous to charge him with sedition. That’s absurd.”
Still, Natelson said, he can foresee the potential for a prosecution to be attempted “in these days in which the law is so often weaponized.”
Hundreds of Days Jailed, Awaiting Trial
So far, at least 1,020 people have been charged with Jan. 6 offenses, according to a database compiled by LookAheadAmerica.org, a nonpartisan, nonprofit group devoted to election integrity and citizens’ rights.
The database shows that dozens of Jan. 6 defendants have been jailed for long periods while awaiting trial. As of May 31, about 145 people were behind bars for Jan. 6 charges. “Many have been detained for more than 800 days,” the group’s data analysis says. “Jake Lang, who came to Rosanne Boyland’s aid as she was dying and beaten on the steps of the Capitol building, is currently imprisoned 865 days, pretrial. In comparison, in 1979, a hostile Iranian regime held, and then released, 52 American hostages for 444 days,” Look Ahead America points out.
As The Epoch Times reported in its 2022 documentary, “The Real Story of January 6,” large numbers of protesters, concerned about whether the 2020 election was legitimate, simply carried signs, sang, and chanted.
Many people stayed outside the building and remained peaceful. Some entered through opened doors of the Capitol and strolled through the corridors like tourists, causing no harm; a number were coaxed inside. But other participants did turn violent, attacking police and vandalizing property.
Two months after a defense lawyer suggested that an unidentified woman nicknamed “Pink Beret” had lured people inside the Capitol, she was placed on the FBI’s Most Wanted List, The Epoch Times previously reported.
Sedition Charge Debated
At least a half-dozen Jan. 6 defendants have been convicted of seditious conspiracy–a severe, rarely used accusation. The charge has been on the books since the Civil War ended; it was intended for use against Southerners bent on rebelling against the federal government.
Such a charge alleges that at least two people worked together to “overthrow, put down, or to destroy by force” the U.S. government, oppose its authority, or prevent a law from being executed.
Federal prosecutors successfully argued that members of two right-wing groups, the Proud Boys and Oath Keepers, conspired to interfere with Congress’ ceremonial counting of the Electoral College votes and the transfer of power from Trump to then-president-elect Joe Biden. Defense attorneys maintained that their clients exercised their First Amendment rights to free speech.
The Proud Boys were convicted even though an FBI informant testified that, to his knowledge, there was no organized plan to storm the building. Instead, he said, “a herd mentality” took hold.
As for Trump, Natelson said: “I have seen no evidence that he promoted violence in any way.”
Trump’s critics point out that he had advocated a legal theory asserting that Vice President Mike Pence had the authority to delay the certification of disputed election results. “I don’t agree with those legal theories, but I don’t think you can really call them untenable,” Natelson said. “And, in any event, promoting untenable legal theories is not the same as advocating the overthrow of the United States government.”
Natelson believes it’s unlikely that Trump would be convicted of seditious conspiracy. He also thinks that if there would be such a charge and conviction, the chances of it standing up on appeal are “small to nil.”
‘Optics’ Aren’t Great
John Banzhaf III, a public interest attorney and law professor at George Washington University, said the recent convictions of the Proud Boys do not help prosecutors “from a strictly legalistic point of view.” But those convictions “might very well make a big difference in terms of what we might call ‘the optics’ of the situation,” he told The Epoch Times in a May 30 interview.
In other words, now that multiple defendants have been convicted and sentenced for seditious conspiracy, it might look “just a little bit better” for the Biden administration to pursue such charges against Trump, Banzhaf said.
“In any high-profile case, optics can often be very important,” he said, adding that’s especially true in this “literally unprecedented case.” If Smith does obtain an indictment against Trump, that would, in effect, put a leading U.S. presidential candidate–Biden–in charge of prosecuting his chief political rival, Trump.
Trump and others allege that Biden, a career politician, and his family have been insulated from meaningful scrutiny on multiple fronts. Yet Trump, a businessman who had been a political outsider before he sought and won the presidency, says he has been unfairly targeted. Both Biden and Trump have denied wrongdoing.
If federal prosecutors under Biden’s control take action against Trump while both are campaigning to win the White House, the situation could cast the nation as “a banana republic or a Third-World country,” Banzhaf said.
Therefore, “the federal prosecutor has to be aware of a real problem of juror nullification or jury nullification,” whereby no amount of evidence would persuade jurors to convict because they judged the prosecution itself as blatantly unjust, Banzhaf said.
Die-hard Trump supporters wouldn’t be alone in their defense of the former president under these circumstances, Banzhaf predicts. He thinks some ordinary, less-politically-inclined citizens might share their disgust over a seemingly inappropriate use of government resources.
Key Question Rarely Posed
The seditious conspiracy charge also might be hard to prove, Banzhaf said.
On Jan. 6, 2021, Trump stated: “We fight like hell, and if you don’t fight like hell, you’re not going to have a country anymore.”
But that’s probably not enough to prove that he “incited” violence, Banzhaf said. When he said “fight,” it may have been a figure of speech. And, Banzhaf noted, that remark is similar to other politicians’ statements.
There’s also a little-discussed legal hurdle to clear: The U.S. Supreme Court’s landmark Brandenburg v. Ohio decision.
In that 1969 case, the court held that “speech advocating illegal conduct is protected under the First Amendment unless the speech is likely to incite ‘imminent lawless action,’” according to the First Amendment Encyclopedia.
Because of the Brandenburg case, “you must create a clear and present danger, and it has to be very, very clear; very, very precise,” Banzhaf said.
He said few people seem to have pondered this pivotal question: “How clear was the danger when Trump made his speech?”
If the danger was so clear, someone should have gotten “on the horn immediately after his speech, and said, ‘Hey, it’s clear: They’re gonna march up on the Capitol; gotta do something,’” Banzhaf said. “But nobody did.”
Georgia Case: Strong or ‘Tame?’
Among the four legal quagmires Trump faces, Banzhaf thinks the New York case against Trump is the weakest. The Smith probes of the documents and Jan. 6 are in the middle. But the Georgia election-interference case may be “the strongest and most likely to win,” Banzhaf said.
Banzhaf was the attorney who filed the original complaint in Fulton County, Georgia, leading to prosecutor Fani Willis’ investigation of Trump. Thus, Banzhaf admits he’s “a little bit prejudiced” in favor of that case.
The Georgia case turns on whether Trump or his allies violated laws as they disputed the results of Biden’s reported win in Georgia.
On Jan. 2, 2021, Trump famously called Georgia Secretary of State Brad Raffensperger, a fellow Republican, and said he needed to “find” just under 12,000 votes to secure victory.
However, that remark has been subject to varying interpretations, making it challenging to prove possible criminal intent behind that statement.
Natelson, the Independence Institute senior fellow, said he read a transcript of Trump’s call to Raffensperger. “I don’t see anything that looks criminal to me,” he said, acknowledging that criminal law is not his specialty.
“Again, it’s always possible that a zealous prosecutor may try to get him [Trump] indicted,” Natelson said. “But when you think of what goes on in American politics, asking somebody to come up with additional votes that he thinks actually do exist, that is pretty tame stuff.”
The Associated Press contributed to this report.
