To be clear, that does not mean these people are immune from prosecution. It simply means that seditious conspiracy is the wrong way to go about it. Obstructing a congressional proceeding, for example, carries a potential 20-year prison term. Assaulting a federal officer is punishable by up to 20 years’ imprisonment if a dangerous weapon is used (and up to eight years if there is physical contact with the victim, even if a dangerous weapon is not used). Damaging government property is punishable by up to 20 years if the destructive act placed lives in jeopardy, which the Capitol riot clearly did (and up to five years if it did not).

There are some complications with such charges, especially obstruction, which requires proof that the person acted “corruptly.” Nevertheless, those offenses do not turn on establishing, beyond a reasonable doubt, that people who believed they were protecting the country were knowingly and intentionally at war with it. They do not turn on proving that people who believed that the president, the top government authority, was encouraging their resistance were knowingly and intentionally opposing the government’s lawful authority.