Since launching a wide-ranging investigation into the U.S. Capitol riot nearly three months ago, federal prosecutors have charged nearly 400 participants in the bloody insurrection with a variety of charges.
That represents about half of the estimated 800 supporters of former President Donald Trump who breached the complex on January 6 in an effort to prevent Congress from certifying President Joe Biden’s victory over Trump in the November election.
With newly confirmed Attorney General Merrick Garland declaring this his top priority, the government is conducting what has been touted as the largest federal criminal investigation in U.S. history involving hundreds of FBI agents and prosecutors.
The charges range from simple trespassing to assaulting police officers. Nearly 150 involve illegal entry of the Capitol. More than 100 people have been charged with assaulting police officers, including one who subsequently died, according to prosecutors.
But by far the most serious charges have been brought against three dozen or so members of three far-right groups: Oath Keepers, Three Percenters and the Proud Boys. The charges range from conspiracy to obstruction of an official proceeding. Some have pleaded not guilty while others’ lawyers have denied the charges.
Now, prosecutors are increasingly focused on building the conspiracy cases and considering upping the ante by bringing the little-used but far more serious charges of “seditious conspiracy,” which carry up to 20 years in prison, according to current and former law enforcement officials.
In an interview that aired on Sunday, federal prosecutor Michael Sherwin, who until last week headed the investigation, told the CBS News program “60 Minutes” that the “evidence is trending toward” bringing seditious conspiracy charges.
“I believe the facts do support those charges,” Sherwin said. “And I think that as we go forward, more facts will support that.”
A seditious conspiracy is defined in federal law as two or more people plotting together to use force to overthrow the U.S. government, oppose its authority or “prevent, hinder, or delay the execution of any law of the United States.”
Given the unprecedented nature of the attack on the U.S. Capitol, the seat of the U.S. legislative government, prosecutors began looking into seditious conspiracy charges almost from the start, with Sherwin telling reporters in late January that the “results will bear fruit very soon.”
But during the first few weeks of the probe, Sherwin’s investigators chiefly focused on what some called the “low hanging fruit” cases — rioters such as the man carrying a “Camp Auschwitz” sign seen in viral social media videos rampaging through the Capitol. The effort proved largely successful, with nearly 100 arrests made by the time of Biden’s inauguration on January 20, according to Sherwin.
David Gomez, a retired FBI agent and counterterrorism executive with the bureau, said what makes the investigation so complex is the fact that the rioters came from across the country.
"So you have offices that normally wouldn't be involved in these type of investigations having to rally their agents to look into and find participants and potential suspects in the assault on the Capitol," Gomez said.
With all but a handful of the most notorious rioters arrested, investigators have shifted their focus in recent weeks to the Oath Keepers and other extremists who plotted the attack for a variety of reasons.
Now, prosecutors are looking for rioters who conspired to overthrow the government, said Sherine Ebadi, a former FBI special agent who is now an associate managing director at Kroll, an international investigative agency.
“That's sort of the heart and soul of this investigation,” said Ebadi, who served as the lead case agent during the special counsel investigation of former Trump campaign manager Paul Manafort.
While investigating rioters who breached the Capitol and destroyed property is important, Ebadi said, “what they're really concerned about is the conspiracy to overthrow the government or to commit acts of sedition.”
But whether prosecutors can prove seditious conspiracy remains an open question. The burden of proof is steep. To prove the charge, prosecutors must demonstrate that a group of individuals conspired with one another to violently overthrow the government.
In recent decades, the Justice Department has successfully prosecuted several international terrorists on seditious conspiracy charges. But it has had less success in using the seditious conspiracy statute against domestic extremists.