In 2010, prosecutors charged members of a Christian militant group called the
Hutaree with seditious conspiracy before a judge dismissed the charges. Federal prosecutors were successful in using the law against Puerto Rican separatists in the 1930s.
The view on sedition reflects the cautious, some say risk-averse, era at the Justice Department under Garland. Officials say he is methodical in making decisions, careful to read memos from prosecutors and peppering them with questions.
"And do we have the evidence for that?" is among the questions he often asks in meetings with officials, who have learned to come prepared for follow-up questions.
Garland refused to say on Tuesday whether sedition charges are still on the table. "We follow the facts, where they go, and then we apply the law. And we will do that in each case as it happens, and when we're ready, we'll do what's appropriate," he told reporters when pressed on the issue. "All I can say is we have a panoply of federal laws that cover behavior. And we're going to pick the ones that are appropriate for the facts."
The seditious conspiracy law makes it a federal crime to conspire to use force to overthrow the US government or to try to prevent the execution of a federal law. Some legal experts say a hurdle for prosecutors would be showing that some of the activity by defendants isn't protected by the First Amendment.