To be clear, seditious conspiracy is relevant for only a small subset of the people who entered the Capitol on January 6. The offense requires a conspiracy—a prior agreement to commit particular offenses; it does not encompass people who simply made impulsive decisions in the heat of the moment. According to the allegations in the indictment, the Oath Keepers plotted their moves for weeks in advance, coordinated weapons stashes outside of Washington, D.C., donned combat and tactical gear, and were in constant communication throughout the attack, all for the purpose of disrupting the certification of the 2020 election results. If this is not a seditious conspiracy, it is hard to know what is.

These alleged facts also warrant at least a consideration of treason charges. Under the Constitution, treason is limited to two offenses: levying war against the United States and “adhering to their enemies, giving them aid and comfort.” Adhering to the enemy is the more familiar type of treason. All of the 20th-century treason cases, such as the prosecution of Iva Toguri, the so-called Tokyo Rose, involved aid to a foreign enemy. By contrast, no person has been charged with levying war against the United States since the 19th century when, for example, the charge was brought against Jefferson Davis, the president of the Confederacy, at the end of the Civil War.