In a memo to U.S. attorneys Thursday, the Justice Department emphasized that federal prosecutors should aggressively go after demonstrators who cause violence — and even sedition charges could potentially apply.
The sedition statute doesn’t require proof of a plot to overthrow the government, the memo read. It instead could be used when a defendant tries to oppose the government’s authority by force.
Attorney General William Barr has been pushing his U.S. attorneys to bring federal charges in protest-related violence whenever they can, keeping a grip on cases even if a defendant could be tried instead in state court. Federal convictions often result in longer prison sentences; sedition alone could lead to up to 20 years behind bars.
The memo cited as a hypothetical example “a group has conspired to take a federal courthouse or other federal property by force,” but the real thing took place in Portland, Oregon, during clashes that erupted night after night between law enforcement and demonstrators.
Justice officials also explored whether it could pursue either criminal or civil rights charges against city officials there, spokeswoman Kerri Kupec told The AP. She would not say whether charges were still being considered.
“The speed at which this whole thing was moved from state court to federal court is stunning and unbelievable,” said Charles Sunwabe, who represents an Erie, Pennsylvania, man accused of lighting a fire at a coffee shop after a May 30 protest. “It’s an attempt to intimidate these demonstrators and to silence them,” he said.
The administration has seized on the demonstrations and an aggressive federal response to showcase what President Donald Trump says is his law-and-order prowess, claiming he is countering rising crime in cities run by Democrats. Trump has derided protesters and played up the violence around protests.
Violence have indeed popped up in Rochester, New York; Minneapolis, Washington, D.C., and Chicago. Federal officials were called to Kenosha, Wisconsin, after large protests and unrest following the shooting of Jacob Blake and the gunning down of two protesters and later arrest of a 17-year-old in their deaths.
Federal involvement in local cases is nothing new. Officials across the country turn to the Justice Department for violent crime and gang cases where offenders could face much stiffer federal penalties and there is no parole.
Police chiefs in several cities have pointed to the importance of their relationships with federal prosecutors to bring charges that can result in long prison sentences to drive down violent crime.
Even before the unrest earlier this year, the Justice Department was stepping in to bring charges in states where the government believes justice is not being fully pursued by local prosecutors. In January, for example, the department brought federal hate crime charges against a woman accused of slapping three Orthodox Jewish women in one of several apparently anti-Semitic attacks reported throughout New York during Chanukah.
It is not clear whether protest-related arrests will continue apace. Demonstrations have slowed, though not necessarily because of the federal charges. Wildfires in the West and hurricanes in the South have lessened some of the conflict.
While many local prosecutors have dismissed dozens of low-level protest arrests, some are still coming down hard. A Pennsylvania judge set bail at $1 million for about a dozen people in a protest that followed the death of a knife-wielding man by police.
Even some Democrats, including District of Columbia Mayor Muriel Bowser, have called for the Justice Department to pursue federal charges against violent demonstrators, going as far as accusing the administration of declining to prosecute rioters. Washington’s Metropolitan Police Department had arrested 42 people one August weekend after a protest left a trail of vandalism. But prosecutors said the arrest paperwork did not identify specific crimes tied to each suspect.
About one-third of the federal protest-related cases are in Portland, for crimes such as assaulting a deputy U.S. marshal with a baseball bat, setting fires and setting off explosives at the federal courthouse and throwing rocks at officers.
An El Paso, Texas, man was accused of promoting hate speech, posting a video online with a racist epithet and making threatening comments to Black Lives Matter protesters while holding a military-style rifle at his feet. A Minnesota man was accused of helping burn down a police precinct headquarters there after Floyd’s death.
But other cases simply do not belong in federal court, lawyers say.
In Seattle, 35-year-old Isaiah Willoughby, who’s accused of setting fire to the outside of a police precinct, faces a mandatory minimum of five years in prison if convicted of arson in federal court. He could be looking at about a year behind bars in state court, where his lawyer said the case belongs.
“This is city property that has been destroyed and you have a local prosecutors office that is ready and willing and able to charge these cases in state court, but the federal government is attempting to emphasize these protest-related crimes for whatever agenda they are seeking to pursue,” said assistant federal public defender Dennis Carroll.