Prosecutors run big risk in pursuing Capitol rioters for "sedition"

I am not saying that no one in the rabble came ready to inflict serious damage and commit acts of violence. To the contrary, a not insignificant number of them plainly did. Big, disorganized throngs tend to draw agitators looking to stir up trouble. Still, it appears the lion’s share of the crowd that came to the Capitol got swept up in the craze of the moment. They entered the building, which they shouldn’t have done — and for which they can be prosecuted, albeit on less serious charges. These participants are different from the attackers. Their state of mind is not necessarily anti-American; they think of themselves as patriots who believe Trump’s demagogic claims of a stolen election; they want the result reversed, but they are not looking to overthrow the government. They do not see themselves as at war with the United States — they would tell you they love the United States.

A wide variety of criminal charges can and should be brought against the people who illegally entered our seat of government, endangered the lives of the vice president and lawmakers, and assaulted security personnel, killing one, in the chaos they caused. Some are complicit in murder, assaults on police, and property destruction; some are guilty of interfering with lawful government operations and trespassing (though it is the People’s House, the people are required to comply with lawful restrictions on entering it and regulations regarding conduct once inside).

It is likely to be very difficult, though, to prove that people on the Capitol grounds were in an organized conspiracy to use force against the United States and its government. If there are groups within the mob that did scheme a violent attack, and the evidence against them is convincing, it could well be worth it to charge them with seditious conspiracy.