The tale of two seditions: Justice and House disagree over Trump’s Jan. 6 role

Manifestly, the House Jan. 6 Committee is trying to build a criminal case against Donald Trump based on the Capitol riot of 2021 and the events leading up to it. This is one of the main reasons the committee, whose members were hand-picked by House Speaker Nancy Pelosi (D-Calif.), a rabid anti-Trumper, is laser-focused on seditious conspiracy.

That is the charge of levying war against the United States and forcibly opposing the government. The committee has made much of the fact that Justice Department prosecutors have brought seditious conspiracy cases against two loosely-knit organizations commonly referred to as right-wing militia groups, the Oath Keepers and the Proud Boys.

But here is what the committee won’t tell you, and what it is concealing by its show-trial rules, which permit no cross-examination and no mainstream Republican membership on the panel. (The nine-member committee’s two Republicans were recruited by Pelosi, over the objection of House GOP leadership, because of their unabashed contempt for Trump.)

There is a fundamental contradiction between the committee’s sedition theory and the theory being pursued by the Justice Department in its sedition cases. Specifically, to the committee, Trump is the root of all evil, and the militia groups were acting at his direction. To the prosecutors, by contrast, Trump has virtually nothing to do with the seditious conspiracy cases they have filed — cases in which he is neither charged as defendant nor named as an unindicted co-conspirator.

The reason for this contradiction is obvious — or at least it would be, if the committee probe were a true fact-finding investigation and not an anti-Trump infomercial.

As a federal prosecutor in the early-to-mid-’90s, I tried the last major, successful seditious conspiracy case in the United States — against anti-American jihadists who, in 1993, bombed the World Trade Center and were thwarted while plotting to bomb other New York City landmarks.

Based on that experience, I have argued that the Justice Department should not have invoked the sedition statute, which was first enacted during the Civil War. We never have had a seditious conspiracy case in which defendants could claim credibly that they were acting at the behest of the President of the United States — the commander in chief — when they took forcible action.

The fact that Trump’s “Stop The Steal” pretensions were baseless did not stop the militia groups from believing them. In a sedition case, it is their intent and motive that matter. In their minds, the Oath Keepers and Proud Boys were not levying war against the U.S. or taking up arms against the government. They were attempting to protect the U.S. and its government from saboteurs who were bent on stealing the presidential election from Trump. They were convinced by his incessant claims that he was the rightful victor.

To be clear, I am not saying the militias are innocent of all crimes. There are plenty of charges that could and should be brought against them, such as obstructing congressional proceedings and assaulting federal officers. That would give them decades of potential imprisonment. I am just saying that seditious conspiracy is the wrong charge.

To try to get around this problem, the Justice Department has adopted the fiction that Trump barely has anything to do with Jan. 6. Basically, prosecutors portray him as just a pretext for aggression against the Capitol that the Oath Keepers and Proud Boys would have carried out anyway. Prosecutors are stressing that the defendants forcibly attacked the government but are unrealistically pretending that they were not catalyzed by the president — the chief executive of government.

By contrast, the committee more accurately contends that Trump’s “Stop The Steal” rhetoric incited the militias. This completely contradicts the Justice Department’s sedition theory. 

Yet, the committee has a problem, too. It lacks evidence that Trump truly intended to stoke a violent attack, rather than merely ratchet up pressure on Vice President Mike Pence and Congress not to count electoral votes of states he was contesting. Moreover, the committee apparently lacks evidence that Trump coordinated with the militias, willfully directing them to execute a violent attack.

Sedition makes for powerful political rhetoric, but in court you need proof. Sure, the Justice Department has managed to pressure some militia members to plead guilty, but that does not mean prosecutors would win their seditious conspiracy case if it is challenged aggressively, as some of the charged defendants are likely to do.

Meanwhile, the Jan. 6 committee is touting the Justice Department’s cases and hoping no one notices that (a) the Justice Department is running away from the committee’s claim that Trump is the instigator, and (b) the Justice Department is doing that because there is no proof beyond a reasonable doubt that Trump knowingly conspired with the militias.

What Trump did was reprehensible. There are many reasons to condemn it. That does not make him, or anyone else, guilty of seditious conspiracy.

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, a Fox News contributor and the author of several books, including “Willful Blindness: A Memoir of the Jihad.” Follow him on Twitter @AndrewCMcCarthy.