January 6 and Seditious Conspiracies

18  USC 2384 sets forth the Seditious Conspiracy statute of the Federal Government:

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.

Seditious conspiracy prosecutions have been rare, largely because the Federal Courts have been dubious about the statute, infringing as it does on freedom of speech, freedom of association and protected political speech.  In Brandenburg v. Ohio (1969), the US Supreme Court devised a two prong test in invalidating an Ohio statute similar to the Seditious Conspiracy statute of the Federal Government:

(1) speech can be prohibited if it is “directed at inciting or producing imminent lawless action” and (2) it is “likely to incite or produce such action.”

That brings us to the case of the cos playing Oath Keepers.  The bane of all thinking conservatives has always been the existence on the right of minuscule groups like the Oath Keepers, who love dressing up in paramilitary style, engage in a lot of loose talk about violent revolution and generally give an opportunity for the media to portray conservatives as nuts.  Half grifter operation and half role playing, it was inevitable that the Oath Keepers were going to be prosecuted for involvement in January 6, although in fact they had no involvement in January 6.  With a DC jury convictions were inevitable, but on the Seditious Conspiracy charges, even for a DC Jury that was a step too far.  Three of five of the Oath Keepers were found not guilty on that charge.  The truly idiotic leader of the Oath Keepers, Stewart Rhodes, and member Kelly Meggs, were convicted of this charge.  All of the Oath Keepers were convicted of enough throw away charges to send each of them to prison for several decades.

On appeal it should be interesting to see if the Seditious Conspiracy convictions are upheld.  Under prior Federal case law the convictions should not be upheld, but an exception is being carved out for January 6 defendants for whom constitutional protections seem to be written in disappearing ink.  The actions by the courts in regard to the January 6 defendants have been far more damaging to our Constitutional order, than anything which occurred in the tragically buffoonish January 6 riot.

If the convictions are upheld the Feds might consider prosecution of the desperado who said this:

This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it.