'Sedition' Meaning As Charges Could See Capitol Rioters Face 20 Years in Prison

Michael R. Sherwin, the federal prosecutor who led the investigation of the Capitol riots, said "the facts do support" charges of sedition, a crime defined by CBS as "attempting to overthrow the government." Those charged with sedition could be fined and face up to 20 years in prison.

Sherwin was the acting U.S. Attorney for Washington, D.C. until March 3. He has since moved to his next assignment for the U.S. Department of Justice.

In an interview with 60 Minutes on CBS, two days after he stepped down from supervising the investigation, Sherwin said there are over 400 criminal cases and "so far, prosecutors have not charged sedition—attempting to overthrow the government."

Asked whether he anticipates sedition charges against some of these suspects, Sherwin told CBS' Scott Pelley: "I believe the facts do support those charges. And I think that, as we go forward, more facts will support that, Scott.

"I personally believe the evidence is trending towards that, and probably meets those elements," Sherwin said.

What is sedition?

According to the United States Code prepared by the Office of the Law Revision Counsel of the U.S. House of Representatives, "seditious conspiracy" is defined as "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."

Sedition is "conduct or speech that incites individuals to violently rebel against the authority of the government," the Center for Strategic & International Studies (CSIS) in Washington, D.C. explains.

What do sedition charges entail?

Those charged with seditious conspiracy "shall each be fined under this title or imprisoned not more than twenty years, or both," the United States Code says.

The CSIS explains: "It is important to consider that federal law refers to 'seditious conspiracy' as opposed to just 'sedition.' There is the added burden of proof that an individual must actively be conspiring and taking steps toward a violent action against the government, not just making comments that seem to merely reflect that desire.

"This is to ensure that First Amendment activity is protected under the Constitution, and only actions that overtly demonstrate individuals' plans to take dangerous steps toward overthrowing the United States' constitutional government are charged," the center adds.

Citing the "very low bar" set by the definition of sedition, when Pelley asked: "I wonder why you're not charging that [sedition] now?," Sherwin replied: "OK, so I don't think it's a low bar, Scott, but I will tell you this. I personally believe the evidence is trending towards that, and probably meets those elements."

Could Trump face criminal charges?

Asked whether investigators are looking into former President Donald Trump's role in the riots, Sherwin said: "We have people looking at everything... everything's being looked at."

"It's unequivocal that Trump was the magnet that brought the people to D.C. on the 6th. Now the question is, is he criminally culpable for everything that happened during the siege, during the breach? What I could tell you is this, based upon, again, what we see in the public record. And what we see in public statements in court.

Sherwin said there are "plenty of people" who say they "did this because Trump," noting "that moves the needle towards that direction. Maybe the president is culpable for those actions."

Over 400 criminal cases so far

Since the Capitol riots took place on January 6, "we're over 400 criminal cases," Sherwin said. More than 100 people were arrested before President Joe Biden's inauguration.

"And the bulk of those cases are federal criminal charges, and significant federal felony charges. Five, 10, 20-year penalties. Of those 400 cases, the majority of those, 80, 85 percent, maybe even 90, you have individuals, both inside and outside the Capitol, that breached the Capitol, trespassed," he said.

Roughly over 100 people have been charged with assaulting federal and local police officers, according to Sherwin.

"The 10 percent of the cases, I'll call the more complex conspiracy cases where we do have evidence, it's in the public record where individual militia groups from different facets: Oath Keepers, Three Percenters, Proud Boys, did have a plan. We don't know what the full plan is, to come to D.C., organize, and breach the Capitol in some manner," he said.

U.S. Capitol riots Washington, D.C. January 2021
Supporters of U.S. President Donald Trump protesting inside the U.S. Capitol building on January 6 in Washington, D.C. Brent Stirton/Getty Images