None of the hundreds of people formally accused of participating in the Jan. 6 insurrection have been charged with the most serious crimes against our democracy, The Associated Press reported. Simply, none have legally been called traitors.
Federal prosecutors have so far resisted charging any of the upwards of 500 defendants who allegedly participated in the deadly storming of the U.S. Capitol with sedition or treason, according to the AP.
- The AP reported that legal scholars have said the charge of sedition my be justified, but federal prosecutors may be hedging their accusations because of the “legal complexity and the difficulty historically in securing convictions” in sedition cases.
- Former acting U.S. Attorney Michael Sherwin, who was leading the federal criminal investigation in the Jan. 6 insurrection, said in March that he believed the facts supported charging the Capitol rioters with sedition — or, as defined by the Cornell Law School’s Legal Information Institute, when “two or more persons ... conspire to overthrow, put down or to destroy by force the government of the United States,” the Deseret News reported.
Can federal prosecutors charge the Jan. 6 insurrectionists with treason?
If federal prosecutors have not pursued sedition charges against the Capitol rioters, it’s unlikely they’d make charges of treason, which requires a higher bar of proof, according to the AP.
Harvard Law School professor Jeannie Suk Gersen wrote in The New Yorker that the framers of the U.S. Constitution ensured the crime of treason had a “narrow definition and made it extremely difficult to prove.”
- “While federal prosecutors could charge some of the leaders of the riot with treason, seditious conspiracy would be far easier to prove. It is clear that the rioters’ goal was, at a minimum, to delay Congress’s legally mandated counting of electoral votes,” Gersen wrote.
Paul T. Crane, a former assistant U.S. attorney, and Deborah Pearlstein, co-director of the Cardoza law school’s Floerscheimer Center for Constitutional Democracy, wrote for the National Constitution Center and said the Constitution’s narrow definition of treason includes two specific actions: 1) “levying war” against America, and, 2) providing “aid and comfort” to enemies of the United States.
- “Treason is a unique offense in our constitutional order — the only crime expressly defined by the Constitution, and applying only to Americans who have betrayed the allegiance they are presumed to owe the United States,” according to Crane and Pearlstein.