Charges? Undoubtedly. Convictions? That might depend on just how many such defendants couldn’t keep their mouths shut, either literally or figuratively on social media. Thus far the Department of Justice has made well over 100 arrests relating to the Capitol riot and filed over 150 cases, but the charges have mostly related to illegal entry into restricted areas, property damage, and assault.
However, the US Attorney in charge of the case says that will change — “very soon”:
U.S. authorities have opened case files on at least 400 potential suspects and expect to bring sedition charges against some “very soon” in the sprawling investigation of the Jan. 6 breach of the U.S. Capitol, officials said.
Acting U.S. attorney Michael R. Sherwin said Tuesday at a news conference that while new arrests in the nationwide manhunt will soon “plateau” after an initial wave of 135 arrests and 150 federal criminally charged cases, investigations continue into whether different “militia groups [and] individuals” from several states conspired and coordinated the illegal assault on Congress beforehand.
In charging papers, prosecutors have already identified a dozen members or affiliates of militant right-wing groups, including the nativist Proud Boys and the anti-government Oath Keepers and Three Percenters, the latter two of which recruit heavily among former military and law enforcement personnel.
Sherwin suggested that seditious conspiracy charges are pending and, without commenting on grand jury indictments, said that “the results will bear fruit very soon.”
Normally, it might be tough to prove sedition. It still might prove difficult in some of these cases. Prosecutors would have to demonstrate that each person individually had a specific intent to stop Congress from conducting the business necessary to transition to a new administration for the purpose of illegitimately imposing their own choice of leader. For many if not most of these defendants, they could argue that they were only there for a legitimate protest and got caught up with a mob that sucked them into the Capitol, but that they had no seditious intent.
How do you prove the mens rea for sedition in those cases? Likely, prosecutors will need to do little more than subpoena the social-media accounts for these defendants, if they have not already done so. As we have already seen, plenty of them posted the videos of their own crimes proudly for all to see, which has been incredibly helpful in identifying them to law enforcement. Family members, friends, acquaintances, and co-workers have pointed them out based on their own bragging on Twitter, Facebook, other platforms, and IRL too. In some of the videos, people can be heard shouting seditious demands and proclamations; good luck explaining those away to a jury based in DC, Maryland, or Virginia.
For groups engaged in seditious conspiracies, the FBI and prosecutors might need to dig deeper and more broadly. That might not prove too difficult either. They have over 500 subpoenas and warrants, plus a large number of idiots who will no doubt be looking for plea bargains and who can trade names for leverage.
It does sound as though Sherwin wants to choose those cases with care, however. “We are trying to separate the aspirational from the intentional,” the FBI’s spokesperson said about ongoing threat assessments against Congress, and that also seems to be driving Sherwin’s focus on prosecutions. They’re looking primarily at organized sedition, the kind of conspiracies that could have delivered the biggest impact on the January 6 disgrace, although one has to assume they’ll take whatever falls into their lap. But what they really want is to dismantle the groups that present bigger threats than just individuals acting on their own. Convictions of that type would set a very firm deterrent and would likely lower the temperature among the less organized significantly.
If that happens, perhaps social media platforms will become much less popular among the seditious, even for recruitment. That will reduce the threat of further violence, plus perhaps make social media something slightly better than a cesspool.