Portland Defense Attorneys Doubtful of Sedition Charges for Protesters

U.S. Attorney General William Barr speaks at a Sept. 10, 2020 news conference in Phoenix. (AP Photo/Bob Christie)

PORTLAND, Ore. (CN) — The Justice Department wants prosecutors to step up punishment for protesters using charges like sedition — which carries a 20-year sentence. Legal experts say it’s an attempt to quell protests that will likely fizzle.

In Portland, federal prosecutors have already ramped up charges against protesters fighting police brutality, charging 32 people with felonies like arson, assaulting federal officers and damaging federal property. 

Forty-three people have been charged with federal misdemeanors like the newly applied “civil disorder” — a charge never used in federal court in Oregon before Aug. 25 — and 11 have received citations.

Now, a memo released by the U.S. Department of Justice confirms that U.S. Attorney Bill Barr has asked every federal prosecutor in the country to aggressively pursue federal charges against protesters, up to and including the charge of sedition.

In a memo issued Thursday, Deputy Attorney General Jeffrey Rosen says he wants to “re-emphasize” the message he and Barr conveyed in a previous phone call, where they advised federal prosecutors of “the need to consider the use of a variety of federal charges.”

“As was previously pointed out, Section 2384 does not require proof of a plot to overthrow the U.S. Government, despite what the name might suggest,” Rosen wrote in the memo.

He noted that the charge is punishable by 20 years in prison, and said it applies to ongoing protests across the country.

“In appropriate cases — for instance, where a group has conspired to take a federal courthouse or other federal property by force — you should consider a charge under Section 2384, among other potentially available charges,” Rosen wrote.

A surge of federal agents sent to Portland by the Department of Homeland Security, the U.S. Marshals Service and the Federal Protective Service faced off with protesters nightly for weeks outside the Mark O. Hatfield Federal Courthouse, and at buildings occupied by Immigration and Customs Enforcement. 

They doused crowds of thousands with tear gas and shot rubber bullets, paint balls and pepper spray at protesters, journalists and legal observers.

Court documents in a proposed class action lawsuit where journalists and legal observers accuse federal agents of targeting them for assault and arrest reveal that federal agents have not left Portland, despite a publicly announced “deal” brokered by Oregon Gov. Kate Brown and Vice President Mike Pence to have Oregon State Police take over the job of protecting the federal courthouse.

Brian Levin, professor of criminal justice at California State University and director of the Center for the Study of Hate & Extremism, says the government is fighting the wrong battle. 

Instead of pressing prosecutors to use arcane and inflammatory charges against leftist protesters demanding justice in the movement for black lives, the government should be fighting the major domestic danger facing the United States: rising white supremacy.

“The biggest threat that our center has been highlighting for years is that white supremacist extremists represent the most prominent threat to the United States,” Levin said. “Federal intelligence agencies admit that white supremacy is the largest problem we face, but we have people like Chad Wolf and Bill Barr making public statements saying the total opposite.”

He said encouragement to use a charge like sedition is part of hyping a made-up threat, rather than actually protecting Americans from violence.

“What we have seen is the politicization of fear and the only explanation I can think of is that this is another part of a pattern of exaggeration and the use of fiery imagery to create a sociopolitical construction of a threat that is far more elevated than the reality,” Levin said.

Lisa Hay, the federal public defender for Oregon, said she doesn’t know the specifics of cases the government is now reviewing for possible charges, but that sedition wouldn’t fit the cases stemming so far from Portland’s protests.

“I don’t know of any facts from cases I’ve seen that would support a charge like this,” Hay told Courthouse News.

She added that the charges federal prosecutors are already using appear to be enough.

“Our U.S. Attorney’s office is aggressively prosecuting crimes that they think were committed in these protests and I doubt they need any additional legal authority to what they are already using,” she said.

Portland criminal defense lawyer Lisa Ludwig said the charges represent a major departure.

“None of this is normal,” Ludwig said. “And I think it’s just posturing. They use arrests as a way to suppress the protests.”

Ludwig said she expects to see many arrests, but not a lot of follow through on charges.

“When your objective is suppression, doing lots and lots of arrests and no prosecutions is more efficient than doing limited and specific arrests for actual crime and then following through with those prosecutions,” Ludwig said. “The whole point is the arrest. The arrest is the punishment.”

Levin agreed that the intent was probably related to “grandstanding” ahead of the election.

“There are myriad statutes to punish people who commit violence,” Levin said. “Rioting, arson, reckless endangerment, felony murder statutes. So it seems to me that this is a bit of grandstanding. They’re swinging a baseball bat that they are probably, if they are wise, not going to use much except as a messaging tactic.”

“But I don’t think we can dismiss it,” he added, “because I do think it does indeed have a chilling effect.”

Rosen notes in the memo that under normal circumstances, state and local prosecutors usually take the lead in such matters.

“But the Department of Justice and our federal partners must continue to assist in that response,” Rosen wrote.

State and local authorities in Oregon have repeatedly declined such assistance.

“This is the criminal law being used as a messaging campaign and that is not the appropriate use of our statutory tools,” Levin said. “They are not applying an applicable law to a real threat but looking for a cobbled threat and trying to apply tools to it that aren’t realistic.”

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