WASHINGTON — Attorney General William Barr told federal prosecutors in a call last week that they should consider charging rioters and others who committed violent crimes at protests in recent months with sedition, according to two people familiar with the call.
The highly unusual suggestion to charge people with insurrection against lawful authority alarmed some on the call, which included U.S. attorneys around the country, said the people, who spoke on the condition they not be named describing Barr’s comments because they feared retribution.
The attorney general has also asked prosecutors in the Justice Department’s civil rights division to explore whether they could bring criminal charges against Mayor Jenny Durkan of Seattle for allowing some residents to establish a police-free protest zone near the city’s downtown for weeks this summer, according to two people briefed on those discussions. Late Wednesday, a department spokesman said that Barr did not direct the civil rights division to explore this idea.
The directives are in keeping with Barr’s approach to prosecute crimes as aggressively as possible in cities where protests have given way to violence. But in suggesting possible prosecution of Durkan, a Democrat, Barr also took aim at an elected official whom President Donald Trump has repeatedly attacked.
In a statement Wednesday evening, Durkan called the report “chilling” and the “latest abuse of power from the Trump administration,” meant to distract the American public ahead of the November election.
“Ultimately, this is not a story about me,” she said in the statement, but about “how this President and his Attorney General are willing to subvert the law and use the Department of Justice for political purposes. It is particularly egregious to try to use the civil rights laws to investigate, intimidate, or deter those that are fighting for civil rights in our country.”
The Trump administration has not been in contact with Gov. Jay Inslee’s office about any possible prosecution of Durkan, Inslee spokesperson Tara Lee told The Seattle Times.
“It is an abuse of power from an administration that appears increasingly willing to bend the laws to punish its political opponents,” she said.
Justice Department representatives did not respond to requests for comment from The New York Times. The Wall Street Journal first reported Barr’s remarks about sedition.
U.S. Attorney for Western Washington Brian Moran, whose district includes Seattle, told The Seattle Times he was not involved in any conversation about whether Durkan should be charged, and believed he would have been had it happened.
“Any hint, or suggestion, that there have been conversations [between his office and the Department of Justice] about arresting, investigating, prosecuting or anything else with regard to Mayor Durkan is patently false, untrue … and frankly one of the goofiest things I’ve heard,” said Moran, a former county and state prosecutor who was appointed by Trump two years ago to replace U.S. Attorney Annette Hayes, who had been Durkan’s chief deputy. “It did not happen.”
However, Moran said he has had “many conversations with Main Justice with regards to the civil unrest and what happened at the CHOP,” the Capitol Hill Organized Protest that grew around the East Precinct, eventually forcing police to abandon the neighborhood
“There were obvious concerns about whether there were federal interest implications,” he said. “Those conversations were always backed up with concern for people who weren’t being serviced by police, fire or 911.”
While Barr has said he spoke to U.S. attorneys in cities the attorney general believed were being overrun by violent protesters, Moran said he was never given “direction” on how he should proceed.
During a speech on Wednesday night, Barr noted that the Supreme Court had determined that the executive branch had “virtually unchecked discretion” in deciding whether to prosecute cases. He did not mention Durkan or the sedition statute.
“The power to execute and enforce the law is an executive function altogether,” Mr. Barr said in remarks at an event in suburban Washington celebrating the Constitution. “That means discretion is invested in the executive to determine when to exercise the prosecutorial power.”
The disclosures came as Barr directly inserted himself into the presidential race in recent days to warn that the United States would be on the brink of destruction if the president was not reelected. He told a Chicago Tribune columnist that the nation could find itself “irrevocably committed to the socialist path” if Trump lost and that the country faced “a clear fork in the road.”
Barr’s actions have thrust the Justice Department into the political fray at a time when Democrats and former law enforcement officials have expressed fears that he is politicizing the department, particularly by intervening in legal matters in ways that benefit Trump or his circle of friends and advisers.
The protest zone in Seattle became a flashpoint in the national debate over issues of race and policing this summer. Officers had abandoned the police station there for weeks before retaking it in late July amid escalating violence, including deadly shootings. Durkan said at the time that she had been forced to act because of the lawlessness.
Days later, federal Homeland Security officials sent tactical agents to the city. Durkan protested that their arrival would potentially exacerbate tensions between residents and local officials.
Trump has called the people who lived in the zone “domestic terrorists” and warned that Durkan and Gov. Jay Inslee of Washington needed to regain control of the area. “If you don’t do it, I will,” the president wrote on Twitter. “This is not a game.”
The attorney general’s question about whether Durkan, the former U.S. attorney in Seattle, had violated any federal statutes by allowing the protest zone was highly unusual, former law enforcement officials said.
“The attorney general seems personally, deeply offended by the autonomous zone and wants someone to pay for it,” said Chuck Rosenberg, the former U.S. attorney in the Eastern District of Virginia. “If the people of Seattle are personally offended, they have political recourse. There is no reason to try to stretch a criminal statute to cover the conduct.”
His supporters say Barr’s approach is necessary to preserve order at a moment that threatens to spiral into violence and to tamp down unrest in cities where the local authorities will not.
More than 93% of the protests in the United States this summer were peaceful, according to a report by the Armed Conflict Location and Event Data Project, which monitors political upheaval worldwide. The report looked at 7,750 protests from May 26 through Aug. 22 in 2,400 locations across all 50 states and the District of Columbia.
But far-right and far-left groups, as well as looters and rioters, have seized on the protests to commit acts of violence, including deadly shootings — serious crimes that some federal prosecutors said could not be dismissed out of hand as anomalous, particularly as the threat from extremist groups grows.
Two men associated with Boogaloo, a far-right movement that supports the coming of a second civil war, were arrested on terrorism-related charges last week. Prosecutors said they used the protests as cover to try to sell weapons to the Palestinian militant group Hamas, which the United States and other countries consider a terrorist group, and to use the money to support the Boogaloo movement.
Barr told federal prosecutors on the call that they needed to crack down on looting, assaults on law enforcement officers and other violence committed during the protests that have continued across the country since George Floyd, a Black man in Minneapolis, was killed in May by the police.
Barr mentioned sedition as part of a list of possible federal statutes that prosecutors could use to bring charges, including assaulting a federal officer, rioting, use of explosives and racketeering, according to the people familiar with the call. Justice Department officials included sedition on a list of such charges in a follow-up email.After Barr spoke, Richard Donoghue, a top aide to the deputy attorney general, interjected to note that some of the U.S. attorneys on the call worked in districts where violence during protests was less common, and that the federal prosecutors may not need to use tools as aggressive as sedition charges.
“If Barr was saying that if you have a sedition case, then bring it, that is fine,” Rosenberg said. “But if he is urging people to stretch to bring one, that is deeply dangerous.”
The most extreme form of the federal sedition law, which is rarely invoked, criminalizes conspiracies to overthrow the government of the United States — an extraordinary situation that does not seem to fit the circumstances of the riots and unrest in places like Portland and elsewhere in response to police killings of Black men.
The wording of the federal sedition statute is more broad than actual revolutions. It says the crime can also occur anytime two or more people have conspired to use force to oppose federal authority, hinder the government’s ability to enforce any federal law or unlawfully seize any federal property — elements that might conceivably fit a plot to, say, break into and set fire to a federal courthouse.
Seattle Times staff reporters Mike Carter and Joseph O’Sullivan contributed to this article.
Correction: An earlier version of this article overstated what is known about the origin of Justice Department discussions about possible charges against Mayor Jenny Durkan of Seattle. While lawyers in the civil rights division discussed potential charges, a department spokesman said that Attorney General William P. Barr did not direct them to explore the idea.