WASHINGTON – Attorney General William Barr urged federal prosecutors in a call last week to consider filing sedition charges against violent protesters amid a nationwide civil unrest that the Justice Department said has yet to subside despite efforts to quell the violence.
Barr's comments come as the Justice Department has charged hundreds of protesters during months of protests following the death of George Floyd, a Black man who died after a white Minneapolis police officer kneeled on his neck for nearly nine minutes.
Federal prosecutors in Portland, Seattle, Minneapolis and other cities have charged protesters with crimes such as assaulting a federal officer, damaging government property, failure to obey a lawful order and arson.
A sedition charge is highly unusual, legal experts said, and is brought against people who conspire to overthrow the government or to levy war against the country.
In a memo to U.S. attorneys Thursday, Deputy Attorney General Jeffrey Rosen confirmed the need to consider "a variety of federal charges" against protesters, including "seditious conspiracy."
Part of the federal government's response to assist local and state officials, Rosen said, is charging "violent rioters" where appropriate.
'Virtually unheard of'
To successfully prosecute someone for sedition, prosecutors must prove that there was a conspiracy against the government, and doing so is "virtually unheard of" in the United States, said Michael Gerhardt, a constitutional law professor at the University of North Carolina at Chapel Hill.
Charging someone with sedition also contradicts constitutional protections to protest, Gerhardt said.
"If it's permissible for the attorney general of the United States or federal prosecutors to go after people because they are arguing against the government ... then what he and these prosecutors are doing is going after people for their political speech. That expression is protected," he said.
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Gerhardt said it's also unclear how Barr or federal prosecutors would draw the line between people who commit violence at protests and people who "say things he doesn't like to hear."
In his memo to prosecutors, Rosen said internal discussions about the possibility of a sedition charge were "misrepresented and criticized in the media."
He said federal law "does not require proof of a plot to overthrow" the government, and someone can be charged with sedition for other anti-government conspiracies, including using force "to oppose" the government's authority, to "prevent, hinder or delay" the execution of the law, and to "seize, take or possess" government property.
Prosecutors should consider a sedition charge, among other charges, if a group conspired to "take a federal courthouse or other federal property by force," Rosen said.
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Rosen noted that former Attorney General Eric Holder and former U.S. Attorney Barbara McQuade charged nine members of a Michigan militia group of seditious conspiracy in 2010. Prosecutors alleged that members of the Hutaree group planned to kill a local law enforcement officer and then set off explosive devices during the funeral.
A judge later dismissed the sedition charges, saying prosecutors were not able to prove there was a clear plot to attack officers.
During a House Homeland Security Committee hearing Thursday FBI Director Chris Wray was asked about Barr's call to federal prosecutors. He told lawmakers that he was not familiar with the attorney general's comments, adding that he was not "a legal expert on the crime of sedition."
The FBI director did, however, acknowledge that violent action around recent protests had become "dangerous." But he said federal investigations of such activity would follow the law and would not veer into "partisan" political considerations.
Sedition comments trouble former DOJ officials
Barr's comments, first reported by the Wall Street Journal, troubled former longtime Justice Department officials who served under Republican and Democratic presidents, some of whom worked under Barr during his first stint as attorney general under President George H.W. Bush.
"I have never known of a sedition prosecution and I was a prosecutor with the DOJ ... for 34 years," said Mary Lee Warren, who served for more than 30 years under five presidents, from Ronald Reagan to Barack Obama. "I think a responsible U.S. attorney would look at the facts ... and see if it applies to the elements of the offense of sedition as it's laid out in the U.S. constitution."
Warren, who was deputy assistant attorney general for the Justice Department's Criminal Division, said the recent comments were "a great change from the Attorney General Barr that I knew."
Joseph Payne, a former Justice Department trial attorney who served for nearly 30 years, from Presidents Jimmy Carter to George H.W. Bush, called the suggestion of filing sedition charges "an overreach."
"It's a scary situation. I'm worried for my country," he said. "I think every American should be very concerned."
William Yeomans, who served for more than 25 years under five presidents, from Carter to George W. Bush, said he's concerned that the attorney general is threatening sedition charges for political purposes.
It's "to stir up the notion that there are extremely evil and dangerous people out there who has happened to be the president's opponents," said Yeomans, former acting assistant attorney general for the Justice Department's Civil Rights Division.
Roy Austin, who served at the Justice Department from President Bill Clinton to Obama, said the sedition comment was "absurd."
"This is a political comment by an attorney general who is hellbent on making political statements in support of this president, which is absolutely contrary to the role attorneys general have played for decades," said Austin, a former deputy assistant attorney general. "And the idea that protesters demanding justice in this country are trying to overthrow the country is beyond ridiculous."
Austin was one of the attorneys who defended protesters who took to the streets during President Donald Trump's inauguration. The Justice Department charged more than 200 people following violent protests on Jan. 20, 2017. Federal prosecutors later dismissed the charges after the first defendants to stand trial were found not guilty.
The New York Times reported that Barr's suggestion to consider sedition charges also troubled some on the call.
A person familiar with the call who's not authorized to speak publicly said the attorney general's biting criticism of his own prosecutors Wednesday night was not related to any immediate concerns raised about the sedition discussion.
Speaking at Hillsdale College Wednesday night, Barr said the Justice Department's career prosecutors – longtime employees of the agency who are not political appointees – can "sometimes become headhunters" and suggested that they have "advanced and defended hyper-aggressive extensions of the criminal law."
The Justice Department, Barr said, has "sometimes acted more like a trade association for federal prosecutors than the administrator of a fair system of justice based on clear and sensible legal rules."
This article originally appeared on USA TODAY: Attorney General Bill Barr suggests charging protesters with sedition