Proud Boys Found Guilty of Seditious Conspiracy

Following on the Oath Keepers convictions, the verdict is a big win for Merrick Garland.

Members of the Proud Boys gather outside of Harry's bar during a protest on December 12, 2020 in Washington, DC. Thousands of protesters who refuse to accept that President-elect Joe Biden won the election are rallying ahead of the electoral college vote to make Trump's 306-to-232 loss official. (Photo by Stephanie Keith/Getty Images)

AFTER A NEARLY FOUR-MONTH TRIAL, a jury on Thursday reached a verdict convicting four out of five defendant members of the right-wing Proud Boys militia group—including its leader, Henry “Enrique” Tarrio—of seditious conspiracy in connection with the bloody attack on the U.S. Capitol on January 6, 2021. (All five were found guilty of lesser charges, as well.) Tarrio had been barred from entering Washington following his arrest for burning a Black Lives Manner flag at a church, but he allegedly directed the January 6th attack from Baltimore.

The verdict is another huge win for the Department of Justice and Attorney General Merrick Garland, who has weathered substantial criticism for failing thus far to indict high-level government officials for their roles in the insurrection. At a Thursday press conference, Garland reminded the public that the January 6th investigation is “one of the largest, most complex, and most resource-intensive investigations in our history,” and has produced “more than 600 convictions for a wide range of criminal conduct on January 6th, as well as in the days and weeks leading up to the attack.”

Let’s not forget, too, that it was incited by and held for the benefit of the defeated 2020 Republican presidential candidate, who is now the frontrunner for the party’s 2024 nomination.

This is the third jury to reach guilty verdicts on the charge of seditious conspiracy relating to the disruption of what DOJ has described as “a joint session of the U.S. Congress that was in the process of ascertaining and counting the electoral votes related to the presidential election.” Last November, a federal jury convicted the far-right Oath Keepers founder Stewart Rhodes and another of the group’s members of seditious conspiracy. Three months later, four other leaders of the Oath Keepers were found guilty of the crime.

The statute spelling out the federal crime of seditious conspiracy was enacted after the Civil War to curtail former Confederates from fighting the reconstructed U.S. government. It appears in 18 U.S.C. § 2384, which provides:

If two or more persons . . . conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

Successful prosecutions are rare, in part because the prohibited conduct can be awfully close to protected speech and freedom to associate under the First Amendment. In 1969, the Supreme Court held in Brandenburg v. Ohio that speech is criminally seditious only if it is directly or imminently likely to produce violence. Thus, for example, in U.S. v. Rahman, the U.S. Court of Appeals for the Second Circuit in 1999 upheld the convictions under § 2384 of “the Blind Sheikh” and other jihadis who plotted to bomb tunnels, bridges, and the World Trade Center, and to assassinate the President of Egypt and an Israeli citizen.

In the Proud Boys case, DOJ charged that the defendants “did knowingly conspire, confederate, and agree . . . to oppose by force the authority of the Government of the United States” and “the lawful transfer of presidential power by force,” and “by force to prevent, hinder, and delay the execution of any law of the United States.” The prosecution aimed to show that the defendants used social media and electronic communications to raise funds and travel to Washington, obtained paramilitary gear and supplies, engaged in planning meetings and encrypted messages on and before January 6th, mobilized the crowd, dismantled metal barricades, destroyed property, and assaulted police officers.

Yet rather remarkably, the jury was unable to reach a unanimous verdict on specific destruction of property and assault charges, which were accordingly dismissed. It also acquitted one defendant of seditious conspiracy altogether.

Before these January 6th-related prosecutions, the last time DOJ charged anyone with seditious conspiracy was in 2010, in a case involving an apocalyptic Christian nationalist militia group that called itself the “Hutaree,” which supposedly meant “Christian Warriors,” in a plot to incite an uprising against the United States government. Concerned, a neighboring militia turned in the group to the FBI. At the close of trial, a federal judge in Michigan threw out the seditious conspiracy charge, concluding that “much of the Government’s evidence against Defendants at trial was in the form of speeches . . . describing law enforcement as the enemy, discussing the killing of police officers, and the need to go to war.” While “the Government presented evidence of vile and often hateful speech,” the court concluded, a “conspiracy to murder law enforcement is a far cry from a conspiracy to forcibly oppose the authority of the Government of the United States.”

Appeals are undoubtedly in the works already in this case. The attorney for defendant Zachary Rehl said of her client: “He’s got a little girl. . . . And his veterans benefits are on the line in a case where he did not commit any violence.”

One of the many ironies around January 6th remains that regular Americans are paying a high price for participating in an event that Trump incited. During the hearings by the House January 6th Committee, another participant in the riot who pleaded guilty to related charges, Stephen Ayres, testified that he went to the Capitol because Trump told them to go to there. “We basically were just following what he said.”

It now falls to Special Counsel Jack Smith to decide whether to charge Trump for his part, too, or whether to draw a painful red line around former presidents, marking them as above the federal laws of the United States. Garland avowed on Thursday that “Our work will continue.”