Do These Seditious Conspiracy Convictions Prove the Capitol Riot ‘Was Not Spontaneous’?

A federal jury yesterday convicted four Proud Boys of participating in a seditious conspiracy aimed at keeping Donald Trump in office after Joe Biden won the 2020 presidential election. Those verdicts, former federal prosecutor Dennis Aftergut argues in an MSNBC opinion piece, show that the January 6, 2021, riot at the U.S. Capitol was “an organized, violent uprising meant to overturn the 2020 election.” According to Aftergut, “It’s now established beyond a reasonable doubt that the Capitol siege was not spontaneous, but rather a planned assault by force on our democracy.”

There are a couple of problems with that characterization. First, the prosecutors in this case, who relied heavily on questionable inferences, never showed that the defendants explicitly planned to disrupt congressional certification of Biden’s victory. Second, it seems clear that most of the Trump supporters who participated in the riot did act spontaneously, a point that Aftergut glides over.

Seditious conspiracy is a felony punishable by up to 20 years in prison. As relevant here, it occurs when two or more people conspire to “oppose by force” the authority of the U.S. government or “by force to prevent, hinder, or delay the execution of any law of the United States.”

The Proud Boys have a long history of street violence, and they were outraged by Trump’s defeat. Members of the group played a conspicuous role in confrontations with police and in breaching the Capitol on the day of the riot. But that does not necessarily mean those acts of violence and vandalism resulted from a seditious plot.

Federal investigators obtained a “vast amount of evidence,” including “more than 500,000 encrypted text messages,” The New York Times notes. But they “never found a smoking gun that conclusively showed the Proud Boys plotted to help President Donald J. Trump remain in office.”

The star prosecution witness was Jeremy Bertino, a former Proud Boy who pleaded guilty to seditious conspiracy. The Times notes that he “repeatedly told investigators that the Proud Boys never had an explicit plan to stop the election certification and that he himself never fully expected violence to erupt on Jan. 6.”

During the trial, Bertino partly repudiated those statements, saying he was trying to “protect myself and protect everyone else from getting in any trouble.” He nevertheless reiterated that he had no knowledge of a plan to disrupt the electoral vote count. Rather, he inferred from “cumulative conversations” with other Proud Boys that the group would use violence toward that end.

“It was common knowledge that if everything else failed, there was no other option than to go into a civil war, a revolution,” Bertino said. “This was a common topic of conversation in all of the chats I was in.” According to his testimony, the Times says, “There were no explicit orders to attack the Capitol on Jan. 6,” but “members of the group felt there was an implicit agreement to band together that day and to take the lead in stopping Mr. Biden from entering the White House.”

Prosecutors sought to bolster their case by presenting videos of violent behavior during the riot by Proud Boys who were only tenuously connected to the defendants. The defense strenuously objected to that evidence, saying the government’s argument amounted to “guilt by association.” The Times describes it as “a novel legal strategy” that portrayed the Proud Boys in the videos and other rioters unaffiliated with the group as “tools” of the defendants’ implicit conspiracy.

In the end, the jury accepted that argument, convicting former Proud Boys leader Enrique Tarrio, who did not participate in the