Federal Insurrection Charges: Why the Scariest-Sounding Law Almost Never Gets Used

Federal Insurrection Charges: Why the Scariest-Sounding Law Almost Never Gets Used

The word “insurrection” carries enormous weight in American politics and law. It conjures images of armed rebellion, the overthrow of government, and the most serious threat to the constitutional order. When federal prosecutors discuss insurrection charges, most people assume they’re facing the full fury of the federal government under the most severe statutes available. But here’s what almost nobody understands about insurrection as a federal crime: the actual insurrection statute hasn’t resulted in a successful prosecution since the Civil War.

That’s not an exaggeration or rhetorical flourish. The federal insurrection law, codified at 18 U.S.C. 2383, has produced exactly one notable conviction in American history. That case, United States v. Greathouse, happened in 1863 when Confederate sympathizers were caught preparing an armed vessel to attack Union ships. Since then, the Department of Justice has never successfully prosecuted anyone under the insurrection statute. The law exists, but it functions more as a historical artifact than an active prosecutorial tool.

If you’re being investigated for conduct that sounds like insurrection, you might expect charges under the insurrection statute. You would be wrong. Federal prosecutors have a different playbook entirely. They use seditious conspiracy charges under 18 U.S.C. 2384, which carries double the maximum penalty and comes with decades of established case law. Understanding this distinction could fundamentally change how you approach your defense and what you’re actually preparing to fight.

The difference between what the public calls “insurrection charges” and what prosecutors actually charge creates a dangerous knowledge gap. Defense attorneys who don’t understand this distinction waste time preparing for the wrong battle. People under investigation make statements based on misconceptions about what they’re facing. And individuals who could have mounted effective defenses against seditious conspiracy charges instead focus on elements that don’t apply to their actual situation.

This article breaks down what federal insurrection charges actually mean under the law, why prosecutors almost never use them, what charges you’ll actually face if investigated for insurrection-adjacent conduct, and how to approach a defense when the real threat differs from what most people expect. The gap between perception and reality in this area of law could determine whether you spend a decade in prison or walk free.

What Federal Law Actually Says About Insurrection

The federal insurrection statute is remarkably short for a crime that sounds so serious. The entire law reads: “Whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.” Thats the whole thing. No detailed definitions, no extensive list of prohibited conduct, just a few broad terms and serious consequences.

To secure a conviction under 18 USC 2383, prosecutors would need to prove several elements. First, they must show the defendant knowingly incited, engaged in, or gave aid and comfort to a rebellion or insurrection. Second, the rebellion or insurrection must have been against the authority of the United States or its laws. Third, the defendant’s actions must have been willful and intentional. The term “aid and comfort” gets interpreted broadly and can include financial support, logistical assistance, or even moral encouragement that contributes to the rebellion.

The penalties might suprise you given how serious the crime sounds. Maximum imprisonment is ten years. Thats it. Compare that to seditious conspiracy, which carries a twenty year maximum. The insurrection statute does include one unique consequence: anyone convicted becomes incapable of holding any office under the United States. This disqualification provision is actualy the only feature that distinguishes insurrection charges from seditious conspiracy in a meaningful way.

The PROMETHEUS Reality: Why This Statute Never Gets Used

Heres what your lawyer probly wont tell you unless they’ve done there homework: the insurrection statute is basicly a dead letter in American law. No successful prosecution since 1863 means no modern case law, no tested jury instructions, and no established precedent for how courts should interpret key terms. When prosecutors want to charge someone with insurrection-related conduct, they face a choice. They can use an untested 160-year-old statute with a lower penalty, or they can use seditious conspiracy which has recent convictions, established precedent, and double the punishment.

The January 6th cases prove this point beyond any doubt. The Department of Justice charged aproximately 1,500 people for there conduct on January 6, 2021. Guess how many were charged under the insurrection statute? Zero. Not one person. Instead, prosecutors used seditious conspiracy charges against the leaders of groups like the Oath Keepers and Proud Boys. Stewart Rhodes got 18 years. Enrique Tarrio got 22 years. These sentences came from seditious conspiracy convictions, not insurrection charges.

Why would prosecutors choose a statute with twice the penalty and more established case law? Because there smarter then people give them credit for. Seditious conspiracy under 18 USC 2384 requires proving a conspiracy between two or more people, but federal conspiracy law is well-developed. Prosecutors know how to prove conspiracy. They have decades of precedent to rely on. The insurrection statute would require blazing new legal ground with less severe consequences if they win.

Seditious Conspiracy: The Charge You’ll Actually Face

If your being investigated for what sounds like insurrection, you need to understand seditious conspiracy because thats almost certainly what your facing. The statute criminalizes conspiring to overthrow, put down, or destroy by force the Government of the United States, to levy war against them, to oppose by force the authority thereof, or to prevent, hinder, or delay the execution of any law. The key word is “conspire” – this requires at least two people agreeing to pursue the prohibited objective.

The elements prosecutors must prove differ from insurrection in important ways. They need to show two or more people entered into an agreement. The agreement must have been to use force against the government or its operations. And each defendant must have knowingly and voluntarily joined the conspiracy with intent to further its unlawful purpose. Thats a different proof burden then insurrection, which theoreticaly allows for individual liability without any conspiracy.

The practical difference matters for your defense strategy. Seditious conspiracy cases often rely heavily on communications between co-conspirators. Text messages, encrypted chats, recorded phone calls, and testimony from cooperating witnesses become central to the prosecution. If you can show you never agreed to anything, never communicated about illegal objectives, or withdrew from any agreement before illegal conduct occured, you have defenses that wouldn’t apply to a straight insurrection charge.

What Makes Someone Vulnerable to These Charges

Not everyone who participated in political protests or even unlawful demonstrations faces seditious conspiracy charges. Prosecutors reserve these charges for people they can prove played leadership roles or engaged in extensive planning. The January 6 seditious conspiracy defendants weren’t random protesters – they were founders and leaders of organized groups who prosecutors could show planned violence in advance and coordinated there actions during the event.

Warning: The communications that get people charged often happen weeks or months before any physical action. Prosecutors build seditious conspiracy cases on the planning phase. Text messages discussing “revolution” or “taking back the government” might seem like protected political speech when you send them. But combined with subsequent conduct, they become evidence of the conspiracy’s existence and your intent to further its objectives.

The people most vulnerable to these charges fit certain patterns. They held leadership positions in groups that engaged in violence against government operations. They communicated extensively about objectives that prosecutors can characterize as conspiracies against the government. They continued participating after violence occured rather than withdrawing. And they left digital trails connecting them to planning and coordination. If any of these discriptions fit your situation, you need a defense attorney who understands the difference between what you might be charged with and what the public thinks your facing.

Available Defenses Against Seditious Conspiracy

The First Amendment provides significant protection for political speech, but that protection has limits. Speech that merely advocates for illegal action remains protected. However, speech that incites imminent lawless action can be prosecuted. The distinction often determines whether someone faces charges or walks free. If your statements were abstract advocacy – even advocacy for revolution – thats protected. If your statements directed people to commit specific illegal acts imediately, thats potentially criminal.

Lack of agreement is often the strongest defense in conspiracy cases. The government must prove you actualy agreed with others to pursue illegal objectives. Showing up to an event doesn’t prove agreement. Even being present when violence occurs doesn’t prove you agreed to it. If you can demonstrate you never entered into an agreement, never knew about others’ illegal plans, or withdrew from any agreement before illegal conduct happened, you may have a complete defense.

The mere presence defense has its limits though. Prosecutors will argue that actions speak louder then words. If you continued participating after violence began, provided support to people engaged in violence, or failed to withdraw when the illegal nature of the conduct became clear, your presence alone might be enough to infer agreement. The cases that succeed with mere presence defenses usually involve defendants who left immediatly when violence started or who can prove they had no idea what was being planned.

Three Things Everyone Gets Wrong About Insurrection Charges

First, people think the insurrection statute gets used regulary for political violence. It doesn’t. It hasnt been successfully used since 1863. When politicians or media describe charges as “insurrection charges,” their almost always describing seditious conspiracy or other offenses. The actual insurrection statute might as well not exist from a practical prosecution standpoint.

Second, people assume insurrection is the most serious charge available. Its not. Insurrection carries a maximum ten-year sentence. Seditious conspiracy carries twenty years. Treason carries a potential death sentence. The statute that sounds most serious actualy has the lightest potential consequences among comparable crimes. This is why prosecutors prefer seditious conspiracy – they get more sentencing leverage.

Third, people believe being called an “insurrectionist” means facing insurrection charges. Political labels and legal charges are completly different things. You can be called an insurrectionist in the media, by politicians, and in public discourse without ever facing insurrection charges. The legal question is what statute applies to your specific conduct, not what political labels describe your actions.

What to Do If Your Being Investigated

If federal agents contact you about insurrection-related conduct, understand your facing seditious conspiracy investigation, not insurrection charges. This distinction affects everything about your defense strategy. Do not make statements based on misconceptions about what your facing. Do not assume the elements of insurrection are what prosecutors need to prove. Get representation from an attorney who understands the difference and can prepare for the actual charges you’ll face.

Stop communicating about anything related to the investigation imediately. Seditious conspiracy cases are built on communications. Every text message, email, social media post, or recorded conversation can become evidence. Invoke your right to remain silent and your right to counsel. Do not discuss the matter with anyone except your attorney. This includes family members, friends, and especialy anyone who might be cooperating with prosecutors.

Preserve but do not destroy evidence. Destroying evidence is obstruction of justice, which adds federal charges to your problems. At the same time, preserve materials that might help your defense – communications showing you disagreed with illegal plans, evidence that you withdrew from any groups before violence occurred, and anything demonstrating your lack of knowledge about others’ intentions. Your attorney will need these materials to build your defense.

Penalties and Consequences

Seditious conspiracy conviction means up to twenty years in federal prison. With sentencing guidelines, most defendants receive significantly less then the maximum, but sentences in the January 6 cases ranged from twelve to twenty-two years for the most culpable defendants. These aren’t probation cases. Federal judges take these charges seriously and impose substantial prison terms.

Beyond prison time, conviction brings collateral consequences that affect the rest of your life. You lose the right to vote while incarcerated and in some states after release. You lose the right to possess firearms permanantly. Professional licenses get revoked. Many employment opportunities close permenantly. Immigration consequences for non-citizens are severe, typically resulting in deportation after serving the sentence.

The insurrection statute’s unique consequence – disqualification from federal office – is the one reason prosecutors might ever choose it over seditious conspiracy. If disqualifying someone from office is the primary goal, the insurrection statute accomplishes that directly. But for punishment purposes, seditious conspiracy provides more leverage. Most defendants would rather be convicted of insurrection with its ten-year maximum then seditious conspiracy with its twenty-year maximum.

Historical Context: Why This Statute Exists

The Founders were deeply concerned about both tyranny and rebellion. They’d just finished a revolution and understood how governments could abuse treason charges to punish political opposition. The Constitution defines treason narrowly to prevent such abuse. But they also recognized that the new government needed protection against genuine insurrection. The insurrection statute emerged from this balance.

The Civil War tested these principles severely. United States v. Greathouse, the 1863 case that remains the only significant precedent, involved Confederate sympathizers preparing to attack Union ships. Justice Stephen Field presided over the case and convicted defendants for preparing armed rebellion even though they never actualy attacked anything. The conviction established that preparation and assistance constitute violations, not just direct participation.

Since then, prosecutors found other tools more effective. Seditious conspiracy emerged as the preferred charge because it fit the pattern of most anti-government violence: groups of people planning and executing attacks together. The conspiracy element made it easier to sweep in organizers and supporters, not just the people who physicaly engaged in violence. The insurrection statute, designed for individual liability, became increasingly obsolete.

The Real Question: What Are You Actually Facing

If your reading this article because your worried about insurrection charges, the first step is determining what your actualy facing. If federal agents have contacted you, what did they say? What questions did they ask? What documents or communications did they reference? These details reveal weather your looking at seditious conspiracy, obstruction charges, assault charges, or other federal crimes.

The investigation stage matters more then most people realize. Prosecutors haven’t commited to specific charges yet. Your conduct during the investigation can affect which charges get filed. Cooperating witnesses often receive significantly better outcomes then defendants who force full trials. But cooperation requires understanding what your actually being investigated for, not what media coverage suggests.

An experienced federal defense attorney can assess your exposure based on the evidence likely available to prosecutors. They can identify which charges fit your specific conduct and develop strategies accordingly. They can also negotiate with prosecutors before charges are filed, potentially resulting in lesser charges or declining prosecution entirely. The earlier you engage experienced counsel, the more options remain available.

Understanding Your Constitutional Protections

The First Amendment protects political speech even when that speech advocates for radical change. Saying the government should be overthrown is protected speech. Saying it should be overthrown and then organizing the physical takeover of government buildings crosses the line. The distinction matters enormously in seditious conspiracy cases, where prosecutors must prove you went beyond advocacy into actual agreement and action.

The Fifth Amendment right against self-incrimination applies fully to insurrection-related investigations. You cannot be compelled to testify against yourself. This right extends to the investigative phase, before any charges are filed. Do not answer questions from federal agents without counsel present. Even truthful answers can be used to build a case against you.

The Sixth Amendment guarantees the right to counsel. In federal cases, if you cant afford an attorney, one will be appointed. But public defenders handling insurrection-adjacent cases often face overwhelming caseloads. If you have any resources, private counsel experienced in national security or political cases provides significant advantages. The complexity of these prosecutions requires specialized knowledge many defenders simply dont have.

What Actually Happens in Court

Seditious conspiracy trials are rare events. Before January 6, the last successful prosecution was in 1995. This rarity means there’s less established courtroom precedent then for common crimes. Judges and juries are figuring out how to apply these statutes in real-time. This creates both risks and opportunities for defendants.

The January 6 trials revealed certain patterns. Prosecutors relied heavily on communications between defendants, particularly encrypted messaging apps. Video evidence from the event itself proved actions during the protest. Cooperating witnesses provided insight into planning meetings and group discussions. Defendants who left early or could show they disagreed with violent tactics fared better then those who embraced violence openly.

Sentencing varied widely based on leadership roles and conduct during the event. Ground-level participants who pleaded guilty to lesser charges received months to a few years. Leaders who went to trial and lost received decades. The disparity demonstrates why early legal strategy matters – defendants who recognized there exposure and made smart decisions minimized there sentences.

Realistic Assessment of Your Situation

If you attended a political protest that became violent but didn’t plan violence, organize groups, or communicate about illegal objectives, your exposure is probably limited to charges related to your specific conduct that day. Trespass, assault, property destruction – serious but not seditious conspiracy level. An attorney can assess weather your conduct fits the seditious conspiracy pattern or weather your facing lesser charges.

If you were in a leadership position, communicated about illegal objectives, or continued participating after violence began, your exposure increases significantly. The key question becomes weather prosecutors can prove you entered into a conspiracy and weather they can prove your specific role. Early intervention by counsel can sometimes prevent charges entirely by demonstrating weaknesses in the government’s case.

If you cooperated with investigators early, provided truthful information, and demonstrated withdrawal from any illegal activity, these factors help significantly at sentencing and potentially at the charging stage. The government needs cooperators to make these cases. If you can provide information about more culpable defendants, prosecutors have reasons to offer favorable treatment.

The Bottom Line

Federal insurrection charges under 18 USC 2383 are essentialy a museum piece – a statute that exists but hasnt been used successfully since the Civil War. If your facing prosecution for insurrection-related conduct, your actualy facing seditious conspiracy charges with there twenty-year maximum and established case law. Understanding this distinction is the first step toward an effective defense.

The gap between public perception and prosecutorial reality creates dangerous misconceptions. People prepare for insurrection charges when they should prepare for seditious conspiracy. They focus on elements that dont apply to there actual charges. They make statements that hurt there seditious conspiracy defense because they misunderstand what prosecutors must prove.

Get experienced counsel immediatly if your under investigation. Stop communicating about anything related to the investigation. Preserve evidence that helps your defense. And understand that your facing a conspiracy charge, not an insurrection charge – because thats the statute prosecutors actualy use when they want to punish what the public calls insurrection.