Experts cast doubt on Trump’s sedition claims

Michael Loria

USA TODAY

Around 20,000 people gathered to watch the execution, the largest crowd for a hanging in early American history.

The crime was sedition. Thomas Hickey, a member of George Washington’s personal guard, was part of a conspiracy of British loyalists aiming to kill the future president. He was hanged days before the Founding Fathers declared independence from King George III.

Around 250 years later, President Donald Trump is invoking the term against congressional Democrats who made a video urging service members to resist illegal orders. The president on Nov. 20 accused the six Democratic lawmakers of “seditious behavior, punishable by death.” However, U.S. law has evolved significantly since the American Revolution and Hickey’s execution. Legal experts told USA TODAY that the president’s accusations would likely fall apart in court. And, according to legal statute, sedition is punishable by a fine and up to 20 years in prison, not death.

“His post is incorrect top to bottom, and only serves to inflame an already dangerous environment,” Steve Schwinn, a professor of constitutional law at the University of Illinois Chicago School of Law, said of Trump’s post on social media. “What they’re saying is not even close to sedition.”

Democrats urging troops to “refuse illegal orders” amid Trump’s efforts to

deploy soldiers to cities said nothing seditious, several experts told USA TODAY.

“The speech Trump is criticizing simply states the law: Soldiers are not to follow unconstitutional or illegal orders,” said Erwin Chemerinsky, the dean of UC Berkeley Law. “The accusation is unfounded and unnecessarily chills criticism of the president’s actions.”

In a Nov. 20 speech on the Senate floor, Minority Leader Chuck Schumer, D-New York, said Trump’s posts should be taken as an “outright threat.”

“Let’s be crystal clear – the president of the United States is calling for the execution of elected officials. This is an outright threat, and it’s deadly serious,” he said.

Asked at a Nov. 20 news conference if Trump wants to execute members of Congress, White House Press Secretary Karoline Leavitt said, “No.”

Justice Department spokesperson Natalie Baldassarre declined to comment on whether the agency would investigate the lawmakers in response to the president’s comment.

Title 18 of U.S. Code Section 2384, labeled “seditious conspiracy,” defines sedition as conspiracies to “overthrow, put down, or to destroy by force the Government of the United States ... or by force to prevent, hinder, or delay the execution of any law of the United States.”

A prominent modern example of sedition, according to Schwinn, came during the Capitol attack on Jan. 6, 2021. Former Proud Boys leader Enrique Tarrio was sentenced to 22 years in prison for seditious conspiracy after organizing the effort to thwart the certification of the 2020 presidential election.

Trump approved pardons for nearly 1,600 people charged in the riot.