In the wake of the political violence encouraged by Donald Trump and his allies, the government is now embarked on a wholly necessary enforcement offensive against the growing threat of right-wing terrorism. Some argue that prosecuting domestic extremists will, inevitably, lead the Department of Justice to confront a problem the nation has faced repeatedly since its founding: How should we draw the line between legitimate political dissent and criminal conduct?
Over 50 years ago, Richard Nixon’s Justice Department brought a case under a then new anti-riot law against a diverse group of left-wing political activists, charging them with responsibility for violence at the 1968 Democratic Convention. As the resulting trial of what became known as the Chicago Seven demonstrated, the violence was actually the work of the Chicago Police Department. Indeed, the defendants and their counsel—including Yippie activists Abbie Hoffman and Jerry Rubin along with eighth defendant and Black Panther Party co-founder Bobby Seale (whom the judge ordered chained and gagged during the trial, before the charges against him were eventually dropped)—managed to use the trial as a national stage to demonstrate that it was actually the police that planned and carried out a brutal and violent riot against largely peaceful demonstrators.
While the Chicago Seven posed no real threat, their case—and past cases of other politically charged prosecutions—are, once again, becoming highly relevant as law enforcement agencies confront a quite different, and very real, threat of politically motivated violence from the right.
Last week, former acting D.C. US Attorney Michael Sherwin said that the government is considering charging some participants in the Jan. 6 insurrection with sedition, that is, rebellion against the state, a charge rarely brought since the middle of the last century. Sherwin’s statement that sedition charges could be in the offing was met with howls of anger—as well as ‘I told you so’s—from many on the right, some of whom have been warning for weeks that the Biden administration is, as Tucker Carlson put it, preparing to institute a “police state.”
"George Pierre Tanios watches as a video of the January 6th storming of the U.S. Capitol in Washington, is shown during his hearing on charges of pepper-spraying Capitol police officers, in Clarksburg, West Virginia, U.S. March 22, 2021, in this courtroom sketch from a video feed of the proceedings. REUTERS/Jane Rosenberg"
REUTERSBut the prospect of sedition charges also discomfited many in the civil liberties community, and for good reason. The history of criminal sedition charges in this country is long and ignominious, extending back to the prosecutions of Jeffersonian newspaper owners and other political opponents during John Adams’ presidency. President Lincoln also famously employed charges of treason and suspended the writ of habeas corpus when jailing Confederate sympathizers. During the first red scare of the last century, a 1918 sedition law was deployed against left-wing opponents of the World War I, including socialist leader Eugene V. Debs, who was tried and convicted for opposing conscription. Members of the Communist Party were charged under the infamous Smith Act, which was upheld by the Supreme Court despite its demonstrable use to target disfavored speakers for their political opinions and statements.
Sedition laws are not the only statutes that have been misused to punish people for political activities, including members of racial minorities or left-wing organizations. The Chicago Seven were charged under the long controversial Anti-Riot Act of 1968, colloquially known as the H. Rap Brown Law. Brown was a civil rights activist and, for a time, served as chairman of both the Student Nonviolent Coordinating Committee and as Minister of Justice of the Black Panthers. He was also among the prime targets of COINTELPRO, a covert FBI program that spent years using blackmail, surveillance, and other tactics against groups and individuals from Martin Luther King to the Weatherman organization and the Panthers.
In 1967, after the FBI had identified Brown as a target for “neutralizing,” he was charged and prosecuted for carrying a gun across state lines and inciting a riot. The prosecution of Brown inspired segregationists and other advocates of “law and order” to insert the Anti-Riot Act in a 1968 fair housing bill. The act criminalizes, among other things, traveling in, or employing instrumentalities of, interstate commerce in connection with inciting or organizing a riot.
After several of the Chicago Seven were convicted under the act, they argued to an appellate court that the statute was wholly unconstitutional because it effectively criminalized constitutionally protected political speech and assembly. While the court rejected that argument, one member of the three-judge panel, George Pell, a Nixon appointee, dissented, arguing that the statute wrongfully punished the exercise of rights protected by the First Amendment. Citing the then-recent terrorist attack against Israeli athletes at the 1972 Munich Olympics, Judge Pell cautioned: “Indubitably the shock will be followed by popular demand for suppression of violence as a political weapon. An ideal state of civilization should find no person in any jeopardy of loss of life… To attain that state, however, by suppression of the free interchange of ideas and beliefs would be a pyrrhic sacrifice of a precious freedom for an illusory safety.”
The H. Rap Brown Law has continued to be controversial in the ensuing decades, particularly among civil rights advocates, many of whom have long shared Judge Pell’s view that the statute is untenably focused on punishing political expression. But prosecutors have continued to bring charges under the act on occasion—and some of the targets would have been unhappy surprises to the segregationists who propounded the law.
Over the last several years, at least two appellate courts have upheld cases brought against white supremacists under the H. Rap Brown law against constitutional challenges. Notably, however, those same courts pared back the scope of the law, ruling that that a provision criminalizing “urging” others to riot runs afoul of the Constitution, while upholding the remaining provisions that criminalize the incitement of, and participation in, riots.
More recently, a number of the extremists who allegedly participated in, and organized, the Jan. 6 attack on the Capitol have been charged under the act. But white supremacists and alleged right-wing terrorists are not the only defendants who have recently faced criminal charges under the controversial 1968 law. The DOJ has also brought charges under the H. Rap Brown Law against some of those accused of violence during the protests against racist policing that occurred last summer, including in Portland, Oregon. In a curious confluence of legal events, now some of those Oregon defendants, as well as some of those charged in the Jan. 6 attack, are likely to aggressively challenge the H. Rap Brown Law, and—if they are true to the positions they have held for decades—some civil libertarians are likely to argue in favor of the defendants in both the D.C. and Oregon cases.
The DOJ should use the law enforcement tools available to it, when doing so is appropriate, even if some of those tools are controversial. But discretion may also counsel against using some of those tools. Many domestic terrorists—like those who invaded the Capitol—may have engaged in conduct that satisfies the legal definition of a crime like sedition; they also are typically thugs who have engaged in conduct that violates other more mundane but often serious crimes, including offenses involving violence like assaults on police officers, that carry with them the possibility of serious punishments. Accordingly, in many cases, the government will not need to avail itself of laws like the Anti-Riot Act or sedition statutes in order to charge and convict the individuals at issue of crimes that will send them away for substantial prison sentences.
None of this is to say that the Justice Department should forswear from using tools like the Anti-Riot Act or the sedition statutes in cases where such laws have actually been violated, and doing so is otherwise appropriate, simply because of the prior history of misuse of these law enforcement tools, whether under Presidents Adams or Nixon. But there are good legal, as well as political, reasons to consider avoiding charges under such rarely used and, frankly, somewhat tainted, laws when there are other options available.
As many politically charged prosecutions in the past have demonstrated, charging a defendant with what amounts to a political crime can give the defendant and their allies a signal opportunity to score propaganda points against the government. That is particularly true when, like Abbie Hoffman and the other members of the Chicago Seven, those who stand in the dock are entirely innocent of the charges against them. But even people who are actually guilty of crimes like seditious schemes to overthrow the government have more than occasionally managed to turn their trials and subsequent punishments into theatrical demonstrations of their own political grievances. Most notoriously, Adolf Hitler’s Munich putsch of 1923 and his subsequent jailing—during which he began writing Mein Kampf —ended up becoming the source of the myth on which the Nazi Party ultimately grounded its takeover of the German government.
Plainly, today’s right-wing propagandists like Tucker Carlson and Donald Trump himself are waiting with bated breath for a show trial during which they can attempt to demonstrate that the government has been turned against the people. Carlson is now warning that “collective punishment is now the official policy of the federal government”, and Trump recently declared on Fox News that “they’re persecuting some of” the Jan. 6 insurrectionists, whom he described as palling around with the same police officers some members of the mob actually beat on the head, crushed, and may even have killed.
As a general practice, ensuring that the charges best fit the actual nature of the offense is the best approach. For example, Professor Laurence Tribe has explained that the leaders of what most people in the country recognize to have been an insurrection at the Capitol could be charged under a post-Civil War criminal insurrection law. Furthermore, the good news is that violent terrorists tend to commit many crimes, and there is no reason for the government to fall into a trap of giving the guilty parties and their allies opportunities to make their criminal cases appear to be political show trials.
