Was January 6, involving, among other things, protesters waving the American flag, an insurrection or sedition? We ask because the recent memo from the Department of Justice requesting draconian sentences for those convicted of “seditious conspiracy” — what law professor Laurence Tribe calls “treason’s sibling” — underscores the seriousness of its implications. Particularly because President Trump could be the next target in respect of January 6. 

Seditious conspiracy is no doubt a most serious crime. It is a product of John Brown’s raid on Harper’s Ferry and the secession of the Southern states during the Civil War. It ordains that “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,” they face a prison sentence of 20 years.

It was to this law that the Department of Justice turned after January 6. The G-men have notched guilty pleas and verdicts against the leaders of both the Proud Boys and Oath Keepers — Enrique “Henry” Tarrio and Elmer Stewart Rhodes III, respectively — as well as their confederates. So confident does the government feel that it filed a “motion for upward departure,” requesting that Rhodes get 25 years behind bars, rather than two decades.

All of this could be grist for Special Counsel Jack Smith’s mill, which is likely to be the one from which an indictment of Mr. Trump would be handed up. Part of what makes seditious conspiracy so supple despite its antiquity is that as a species of conspiracy, once the overarching enterprise is established and a step taken towards its consummation, everyone caught in its web can be charged, whether they were at the Capitol or, say, the Oval Office.     

This was famously stated, as these columns have marked, by Chief Justice Marshall, who, in a case of alleged treason in 1807, warned that “if war be actually levied — that is if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose — all those who perform any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.” 

Nowhere, as far as we can tell, has the Justice Department made the case that what happened on January 6 was an insurrection, although President Biden has used the term. Only a county judge in New Mexico has reached that conclusion from the bench. Even if the courts do find that January 6 was an insurrection, there is still the question of what they can do with President Trump. He was, after all, already tried for incitement to insurrection and acquitted. 

That trial, of course, was in the Senate, where the former president was in the dock on a charge brought through impeachment. This sets the stage for what could be the mother of all double-jeopardy cases. That’s because the Constitution ordains that an officer “convicted” in an impeachment case shall “nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

Mr. Trump, though, was not “convicted.” On the contrary, he was acquitted, determined to be “not guilty” by a vote in the Senate that fell far short of what would have been needed to convict. To our mind, that leaves as an open question whether Mr. Trump can be brought up for anything involving the events on which he was acquitted. The Justice Department looked at this in an internal memo and found that it’s not a double-jeopardy situation. 

That memo was authored by a Justice Department official, Randolph Moss, who now sits on the federal bench. Drafted after the impeachment and acquittal of President Clinton, the memo allowed that there is “a reasonable argument” for the position that the Constitution “should be read to bar prosecutions following acquittal by the Senate.” No less an eminence than Judge Robert Bork disagreed, fearing a “pardon by acquittal.”

We recognize the gravity of sedition. All the more would we prefer to hear from, in the Supreme Court, a less partisan source than the Justice Department. The DOJ would be prosecuting, which should preclude it from also being judge and jury. It is one thing, as District Attorney Alvin Bragg has done, to charge a former president with covering up a tryst. It is another thing, as Mr. Smith could yet do, to argue that a president turned against his country.