What is the potential penalty if someone is convicted of 'seditious conspiracy'

Proud Boys leader Enrique Tarrio leaves the D.C. Central Detention Facility on January 14, 2022. Evelyn Hockstein/Reuters

• Five Proud Boys were charged with seditious conspiracy related to the Jan. 6 attack on the Capitol.
• Seditious conspiracy is when people conspire to overthrow, put down, or destroy the government.
• The charge carries with it a potential sentence of up to 20 years in prison and a fine.

Enrique Tarrio and four other members of the Proud Boys were charged this week with seditious conspiracy in what one constitutional expert calls a "textbook case" of sedition, but the charges themselves face an uphill battle in court.

Seditious conspiracy, sometimes referred to as "sedition," is law that first originated in 1789 to prosecute speech critical of the government. It has since been rewritten, with the current law stating: 

"If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, 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."

Michael McDaniel, Director of Homeland Law at Cooley Law School, told Insider the case against the Proud Boys would likely carry with it the maximum sentence of 20 years, based on the magnitude of the attack on the Capitol on Jan. 6, 2021. 

"To me, this was a textbook case," McDaniel said. "It was the fact that they were smashing windows, pouring into the Capitol, at exactly the time that the Senate is counting, under the election Control Act, they're counting the ballots of the electors from each state. That's what made this so egregious to me and made it seem seditious to me from the beginning."

The last time the United States prosecuted anyone under the seditious conspiracy law was in the case of the Hutaree militia in 2010, when nine members of the so-called "Christian Patriot" movement were arrested for plotting to kill police officers and attack additional officers at their funerals. 

In the case of the Hutaree militia, defense lawyers argued the men were play fighting and their criticism of the government was protected under the First Amendment. A judge dropped the sedition charges before the defendants faced a jury, in part due to concerns about protected speech. 

"There's been this theme ever since where the question is, were the individuals just criticizing the government?" McDaniels said. "Or were they discussing the conspiracy itself, was it a part of the illegal agreement?"

In order for the Proud Boys to be convicted of the seditious conspiracy charges, McDaniels said, four elements have to be proven in court.

"You have to have an agreement to carry out a criminal act. Secondly, it has to be criminal, it has to be illegal. Third, you have to knowingly participate," McDaniels said. "The prosecutor has to prove that the individuals who have been indicted now knew that this was an activity on behalf of everybody involved. And then there has to be some overt act, you have to be advancing the goal of the conspiracy."

While McDaniels said he believes the case of the Proud Boys attacking the Capitol on Jan. 6 is a textbook case of seditious conspiracy, proving all four of those elements will likely be a challenge for prosecutors. 

"Right from the beginning, I thought, 'Okay, this is sedition,' and there's no question in my mind from the beginning," McDaniels added. "But, the hesitation is: that's kind of tough to prove."