Prosecutors are needlessly risking acquittal by filing inappropriate charges.
Prosecutors are needlessly risking acquittal by filing inappropriate charges.
T wo elements are indispensable to the crime of seditious conspiracy. First, there must be an agreement to use force, as opposed to protesting peacefully — even if rambunctiously. Second is the concept of levying war against the United States or opposing the lawful authority of the United States. Now that the Justice Department has been goaded into charging members of the Oath Keepers with seditious conspiracy for their participation in the Capitol riot, prosecutors may find that these elements pose insuperable challenges to their case.
The indictment filed Thursday necessitates revisiting this subject. It does not, however, change what I’ve already said about it, back in June: The actions of then-president Donald Trump before and during the riot undermine seditious-conspiracy charges.
First codified by Congress during the Civil War, the crime of seditious conspiracy principally targeted Confederate sympathizers in Northern states who undertook to sabotage the war effort. Such defendants were best understood either as having joined the Confederacy’s war against the United States, or, at a minimum, as opposing the government’s lawful execution of wartime operations.
In the ensuing 160 years, there have been just a relative handful of seditious-conspiracy prosecutions. I know something of this abstruse crossroads of American history and violent sedition because, nearly 30 years ago, I prosecuted the last major, successful case of this kind. Thankfully, people in the United States do not often try to make war on their fellow Americans, violently overthrow the government, or otherwise forcibly attack facilities and officials specifically because they are part of the government.
Seditious conspiracy is the rare criminal offense in which motive matters. In most crimes, prosecutors need establish only knowledge and intent — meaning, the defendant did not act by mistake. If you embezzle funds from a federal agency, for example, it makes no difference that you needed money to feed your starving family; you knew the funds were not yours, and you stole them on purpose, case closed.
Why the accused acted is, however, a core question in seditious-conspiracy prosecutions. It must be proved that force was directed at government facilities and agents because they instantiated the government’s execution of its lawful authority. Or it must be shown that the defendant was trying to wage war against the American people: The purpose of attacking civilian infrastructure, for example, must be to coerce the United States into surrendering, changing policy, or taking some other national action. To the contrary, while blowing up a building in order to collect on the insurance is a heinous act, and one who does it should face a severe sentence, it’s not seditious conspiracy.
As I hope is obvious, I go through these legal niceties not to defend people, such as Capitol rioters, who violently stormed the seat of our government and assaulted police. They should be prosecuted aggressively and incarcerated accordingly.
My point is to show that seditious conspiracy is rarely invoked to achieve that worthy end because it is reserved for highly unusual situations involving unambiguous enemies of the United States. The January 6 scenario is not cut and dried that way. It’s complicated. It involves people who committed serious crimes but believed — however foolishly — that they were saving the country, not levying war against it. Far from opposing the lawful authority of the government, they believed — not irrationally — that they were acting at the behest of the president of the United States.
By contrast, the paradigmatic seditious-conspiracy case is the case I was privileged to prosecute. The accused were jihadists, mostly U.S.-based foreign nationals but also some American citizens. There was no doubt that they were at war with the United States; they hated the United States, wanted to destroy our constitutional system, wanted to mass-murder Americans, and could not have said so more clearly. Similarly, there was no doubt that the defendants planned and carried out attacks on civilian infrastructure (e.g., the 1993 bombing of the World Trade Center) and government facilities (e.g., schemes to bomb the FBI’s Manhattan headquarters and American military installations) because they believed the government was using its lawful authority in a manner that, in their anti-American animus, they perceived as hostile to their interests and desired policies. And note: That they were wrong was beside the point; what mattered was what they believed, why they acted.
This was consistent with the Civil War model. The Confederacy was undoubtedly at war with the Union, and its supporters knowingly abetted that war effort. The point was to separate the rebellious states from the Union, which would presumably continue on without them. For the Confederacy and its supporters, it was not that Abraham Lincoln was an illegitimate president; it was that his lawful election, and what they believed it portended, induced them to oppose the government’s lawful authority.
In trying to fit the Capitol riot into this paradigm, the Justice Department ignores basic tenets of the criminal law and tells half a story.
Repeatedly, the indictment asserts that the defendants undertook to thwart “the lawful transfer of presidential power.” Now, if we were writing a report about what happened on January 6, it would be completely appropriate to state, as an objective fact, that the “lawful transfer of presidential power” required acknowledgment of President Biden’s victory. But an indictment is not a report. It is not about what Attorney General Merrick Garland or you or I know is an objective fact. A criminal indictment is an accusation, calling into question not only the defendants’ actions but their state of mind when they took those actions. In this instance, the charged defendants believed that an acknowledgment by the joint session of Congress that Biden had won the presidency would be an unlawful transfer of presidential power.
And why did they believe that? Because the president of the United States told them so.
The Justice Department is charging the Oath Keepers with opposing the government’s lawful authority by force under circumstances in which the chief executive officer of the government, in whom all its executive authority was reposed, had convinced them through weeks of misrepresentations — including baseless claims of foreign interference, voting-machine manipulation, and counterfeit-ballot stuffing — that the election had been stolen, and that only by zealously resisting that outcome could the country be saved.
To read the indictment is thus a vertiginous experience. For nearly 30 pages, prosecutors describe a state of affairs in which, during the two months following the November 2020 election, Biden’s victory was neither denied nor deniable; therefore, the narrative insists, acknowledgement of Biden’s triumph was, beyond cavil, what the lawful transfer of power required. The defendants and their co-conspirators are portrayed as if they were irrationally plotting to defy that inarguable outcome. The indictment blithely omits that, day after day after day, the incumbent president was alleging that the election had been rigged and that the transfer of power to Biden would be unconstitutional — the antithesis of “lawful.”
A good example (I could cite many others): The indictment relates that in an interview on December 22, 2020, the lead defendant, Elmer Rhodes, “urged president Trump to use military force to stop the lawful transfer of power” (emphasis added) and described the upcoming January 6 joint session of Congress as a “hard constitutional deadline” to do so.
That is a grossly inaccurate description of what happened. Rhodes did not urge that the lawful transfer of power be stopped. Prosecutors offer no reason to believe that Rhodes intended to obstruct the lawful transfer of power. To be accurate, the indictment would have to say Rhodes urged Trump to stop what Rhodes believed was the unlawful transfer of power. And while Rhodes was mistaken in this belief, he did not formulate it out of thin air. He believed the transfer of power to Biden would be unlawful because the incumbent president — the only public official vested with constitutional authority to uphold the laws — insisted it would be unlawful. Consequently, Rhodes saw January 6 as a “hard constitutional deadline” because he saw himself as upholding the Constitution — preserving the government, not overthrowing it. He was not trying to oppose the government’s lawful authority; he saw himself — again, based on what the government’s own top official was saying — as protecting the government from the unlawful seizure of authority.
Of course Trump was wrong in what he was peddling to Rhodes and the country at large. Mendaciously wrong. Nevertheless, Trump is not a charged defendant. The fact that he had to know that what he was saying was false is irrelevant to the mens rea — the allegedly criminal state of mind — of the people who are charged. They thought they were defending the country, the Constitution, and the government. Because the president told them so.
At the start of this column, I explained that there were two key components of seditious conspiracy: a personally held purpose to make war on the United States, as well as an agreement with others to use force. This has to make it frustrating for prosecutors as they view the array of agitators.
The person singularly responsible for what happened was Donald Trump. He convinced his supporters that the election and their government were being stolen. But he said he wanted peaceful protest enough times that he could never be convicted of seditious conspiracy — it could never be proved beyond a reasonable doubt that he conspired with others to use force. So you’re left with a riot in which the ringleader effectively immunizes himself by disavowing force; yet, because of the ringleader’s misrepresentations, his supporters, though they used force, did not intend to levy war against the United States, overthrow its government, or resist lawful authority. They made the mistake of believing him . . . and of going way too far based on that belief.
To be clear, that does not mean these people are immune from prosecution. It simply means that seditious conspiracy is the wrong way to go about it. Obstructing a congressional proceeding, for example, carries a potential 20-year prison term. Assaulting a federal officer is punishable by up to 20 years’ imprisonment if a dangerous weapon is used (and up to eight years if there is physical contact with the victim, even if a dangerous weapon is not used). Damaging government property is punishable by up to 20 years if the destructive act placed lives in jeopardy, which the Capitol riot clearly did (and up to five years if it did not).
There are some complications with such charges, especially obstruction, which requires proof that the person acted “corruptly.” Nevertheless, those offenses do not turn on establishing, beyond a reasonable doubt, that people who believed they were protecting the country were knowingly and intentionally at war with it. They do not turn on proving that people who believed that the president, the top government authority, was encouraging their resistance were knowingly and intentionally opposing the government’s lawful authority.
This is the wrong case for invoking seditious conspiracy. For political reasons, Democrats and Trump opponents want to brand January 6 as sedition, since sedition is the closest thing to insurrection. But it is not good law enforcement to infuse a prosecution with complications that needlessly risk acquittal, especially when more fitting charges would provide for the lengthy sentences that the most culpable rioters richly deserve.
Meantime, as I said back in June, “January 6, 2021, will live in infamy as a national disgrace. But in the main, it is Donald Trump’s disgrace.” That is a fact. It will not change based on what charges the Justice Department files.