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Fact check: Can individuals be convicted of insurrection without being charged with a specific insurrection statute?
Executive Summary
Can people be convicted of insurrection-related conduct without being charged under a specific insurrection statute? Yes: recent analyses show prosecutors have relied on other federal laws—most prominently the civil disorder statute—and constitutional mechanisms like Section Three of the Fourteenth Amendment to punish or disqualify individuals for insurrectionary conduct without an explicit insurrection charge [1] [2]. These approaches raise contested legal and constitutional questions about scope, enforcement, and free-speech implications, and scholars and commentators disagree on their proper use and limits [1] [2].
1. How prosecutors sharpen legal tools when no insurrection statute is used
Prosecutors have increasingly turned to statutes such as the civil disorder law to charge people for obstructing or impeding law-enforcement during civil disturbances, a route that can yield convictions without invoking a narrow insurrection statute. Reporting and analysis from October 2025 document cases where defendants tied to the January 6 attack and an immigration-rights activist faced charges under the civil disorder statute, illustrating how prosecutors can penalize disruptive, violent, or obstructive conduct using broader criminal statutes [1]. This tactic expands prosecutorial options but also brings concerns about selectivity and legal fit [1].
2. The constitutional alternative: Section Three as a non-criminal remedy
Scholars writing in September 2025 argue Section Three of the Fourteenth Amendment provides a non-criminal route to consequences for insurrectionary participation: disqualification from holding office. A working paper contends Section Three can operate as an enforceable, even self-executing, constitutional bar without a criminal conviction under an insurrection statute, meaning actors could be removed from political office or blocked from serving on constitutional grounds distinct from ordinary criminal prosecution [2]. This shifts focus from punishment to political exclusion, raising questions about standards of proof and adjudication.
3. Competing perspectives on legal breadth and civil liberties
Commentators note the civil disorder statute’s broad language permits prosecution of interference with law enforcement during protests, but critics warn this breadth risks ensnaring First Amendment-protected activity. Reporting in October 2025 highlights civil-liberties concerns that aggressive use could chill lawful protest and speech, pointing to a tension between law-enforcement flexibility and constitutional protections [1]. Supporters of broad application emphasize public-safety imperatives; opponents emphasize the need for narrow statutory construction to protect civil liberties [1].
4. Practical examples showing the legal routes in action
Contemporary reporting documents real-world instances where actors tied to the January 6 events and other protests were prosecuted under statutes other than an explicit insurrection law, illustrating that criminal liability for insurrectionary behavior need not rely on an insurrection-specific charge. These cases demonstrate how prosecutors can pursue convictions for conduct—obstructing officers, engaging in violent disruption—through existing federal criminal statutes, which leads to convictions and sentencing without invoking the insurrection label [1]. The line between criminal conduct and political expression remains contested.
5. Institutional consequences beyond criminal courts
Beyond criminal conviction, Section Three offers institutional remedies by disqualifying individuals from office if they “participated in insurrection or rebellion,” according to recent scholarly work. Advocates argue this constitutional provision can be applied administratively or judicially to prevent office-holding by those who engaged in insurrectionary acts, thereby broadening accountability tools beyond the criminal-justice system [2]. Opponents warn that deploying Section Three raises procedural and evidentiary questions that courts and lawmakers must resolve to avoid politicized enforcement [2].
6. What the debate leaves out and what to watch next
Coverage and scholarship underscore unresolved issues: whether broad statutes will be used consistently or selectively, what evidentiary standards will govern Section Three enforcement, and how courts will balance public-order interests against free-speech protections. The October and September 2025 pieces underscore that these are ongoing legal battles, with future court rulings and legislative responses likely to shape the contours of accountability for insurrection-related conduct [1] [2]. How courts set standards for proof and remedy will determine whether these tools remain auxiliary or central.
7. Bottom line for readers seeking the practical answer
The practical answer is clear from recent analysis: individuals can—and have—been convicted or constrained for insurrection-like conduct without an explicit insurrection statute by using the civil disorder statute or invoking Section Three as a constitutional disqualification. These approaches expand enforcement options but carry significant constitutional and procedural trade-offs that will be litigated and debated in coming years [1] [2]. Policymakers and courts will decide whether these instruments become routine or remain contested exceptions.