This might come as a surprise to anyone following the House January 6 Committee’s investigation.
This might come as a surprise to anyone following the House January 6 Committee’s investigation.
T he Justice Department issued a triumphal press release on Wednesday to announce that it had induced a leader of the Oath Keepers to plead guilty to a seditious-conspiracy charge in connection with the Capitol riot.
Now you may have heard, particularly if you’ve been following the House January 6 Committee’s investigation, that then-president Donald Trump is not only singularly responsible for the tumult on Capitol Hill that day and not only “incited” an “insurrection”; Trump may even have committed such federal crimes as obstruction of congressional proceedings — and he most certainly stoked that throng into obstructing congressional proceedings by rioting.
The committee’s press statements along these lines are what make DOJ’s press release such a curious document. Go ahead and peruse it. Search it high and low for the word “Trump” or any reference to Trump as “president.” You’ll search in vain.
Now, it should go without saying that what the Biden Justice Department describes as its “strike force” against “sedition and conspiracy” is no less Trump-focused than the Democrat-dominated January 6 Committee. Nevertheless, because DOJ is doing law rather than politics, at least ostensibly, it needs to keep the former president at a safe distance if it’s going to go the sedition route.
Going that route is improvident. I’ve made that argument based on the experience of having prosecuted a case under the rarely used seditious-conspiracy law — a law whose invocation of sedition, redolent of the infamous late-18th-century Alien and Sedition Acts, was controversial in the Nineties, even though we were using it against unabashedly anti-American, mass-murdering jihadists. Seditious conspiracy is rarely charged because it is reserved for a historically extraordinary situation: conspiratorial agreements to make war on the United States or, with similarly hostile, anti-American motivation, to use force against the government — including federal facilities and agents, such as the Capitol and its police force.
Joshua James, who has pled guilty, was Alabama chapter leader of the Oath Keepers, which the government describes as a “loosely organized collection of individuals, some of whom are associated with militias.” By the way, there is nothing illegal about being in, or “associated with,” a militia. Democratic administrations think militias are scary — hell, they’re even mentioned in the Second Amendment, which is really scary. So no surprise to find them scripted into the “Sedition and Conspiracy Strike Force’s” mood music.
As for the main event, there is no doubt that James and some of his Oath Keepers chums used force, as they had conspired to do, to obstruct a congressional proceeding — the constitutionally and statutorily mandated January 6 joint session, when members of both chambers, and the vice president in his capacity as presiding officer of the Senate, convene to witness the counting of state-certified electoral votes. The candidate who has won a majority is thus acknowledged as the elected president for the term that begins two weeks later.
So James & Co. conspired to use force against the government. Except . . . that’s just half the story. There is still the question of why they did that.
Seditious conspiracy is an outlier among federal criminal offenses because motive is crucial. To establish guilt, it is not enough to show that a defendant intended to join in the use of force against, say, a government official. For example, if I punch a Capitol police officer because he made a pass at my wife, I commit the crime of battery. If he is a Capitol police officer engaged in his official duties, I probably also commit the crime of assaulting a federal officer. But even if I know he is an agent of the government, and I quite intentionally punch him, my act is not seditious — and even if I talked my friend into holding the Capitol cop so I could punch him, we have not committed seditious conspiracy.
Why? Because, as the pertinent jurisprudence instructs, to be seditious, the conspiracy must contemplate using force against the government qua government. To be guilty, I have to attack the government agent because he is an agent of the United States. My use of force has to evince hostility against the United States, the American people, and/or their government. The classic offenders are jihadists who not only bray “Death to America” but plow a jumbo jet into the Pentagon, or detonate bombs at U.S. embassies and such centers of American commerce as the World Trade Center — something that is, and is obviously intended to be, an act of war against our country.
So, why did Joshua James and his misbegotten cohorts agree to use force against the Capitol? Were they trying to make war against the United States? No. They believed they were acting at the behest of the president of the United States.
They believed President Trump’s tireless, serial lies that the Democrats had stolen the 2020 election through massive fraud, including the manipulation of voting machines. They believed his diatribes about how elected Republicans were too craven to use their supposed powers to “stop the steal,” and therefore that it was up to American patriots to fight for their country, in order to preserve our constitutional order.
Now, this was a disgraceful dereliction of duty on Trump’s part, a shameful elevation of his ego and political standing — the fact that he could not come to grips with losing an election to Joe Biden, of all people — over his solemn oath to preserve, protect, and defend the Constitution. But the people who foolishly believed him and acted on his tirades, convinced that their president would never mislead the country about such a thing, were not motivated to make war against the United States or launch hostile attacks against the government. They thought they were saving the United States and protecting the government against schemers who were fraudulently seizing its lawful authority.
Interestingly, while congressional Democrats and their woke-progressive supporters revel in demagoguing Trump supporters as white supremacists and neo-Nazis, the Justice Department — which must confine itself to facts and evidence to prevail in court — says no such thing about the Oath Keepers. DOJ’s press release, reflective of its indictments and pleadings, tells us that the Oath Keepers “will accept anyone as members” [sic]. They do, however, “explicitly focus on recruiting current and former military, law enforcement, and first-responder personnel.”
If you’ve had the good fortune, as I have, to have as friends and colleagues “military, law enforcement, and first-responder personnel,” about the last thing you would ever think is, “Here are the makings of a seditious conspiracy!” Are some of these folks overzealous and too uncritically deferential to what they take to be their chain of command? You’ll get no argument from me about that. But the zealots are misguided, not seditious.
You may notice, moreover, that I am not saying, “Don’t prosecute them.” I’m saying seditious conspiracy is not a good fit on the unprecedented facts of this case.
I’d prosecute the rioters aggressively if they planned and carried out assaults on security personnel and other government officials, lawmakers included. I am also convinced that, in his thorough and well-reasoned opinion in another January 6 case, Judge Amit Mehta is right in concluding that the law criminalizing obstruction of congressional proceedings (Section 1512(c)(2) of the penal code) is properly applied to the Capitol rioters. That statute’s mandate that prosecutors prove the accused acted “corruptly” — which many rioters have unsuccessfully challenged on vagueness grounds — means the government must show that actions were undertaken with consciousness of wrongdoing. As with most crimes, the motive is irrelevant in an obstruction case; there are lawful ways to protest against congressional actions, but everybody knows — regardless of how righteous the cause — that it is illegal to express dissent by forcibly preventing lawmakers from convening.
But if motive does matter, as it does in sedition, then it matters that these rioters were not at war with the United States. To the extent that they used force against government facilities and personnel, in their minds it was to protect the constitutional system, not attack it. They did not believe that idly, nor are they fabricating an excuse after the fact. They believed it because the president told them so. The fact that most of us realized the president was guano peddling, that he was cynically railing about fraud in lieu of proving fraud, does not mean less skeptical people could not have believed him. Indeed, that is why it makes sense to have a thorough congressional investigation, to ensure that we are prepared to counter a repetition of such egregious executive misconduct.
It is also why seditious conspiracy is the wrong charge to bring. We have never in the statute’s history, which stretches back to the Civil War, had such a prosecution: one in which the accused can plausibly claim they were acting on the summons of the United States government’s top official.
Many smart lawyers, including some federal judges, have argued that the president has no authority to immunize the commission of crimes. That is not really true — or at least it is overstated. For example, when the FBI permits an agent or informant to go undercover and participate in crimes in order to gather evidence, it is acting on the president’s executive authority. The law, furthermore, has long provided a defense of “public authority.” It applies when a person, such as an informant, has been charged with a crime even though he was acting on the instructions of a government official, or believed in good faith that he was, when he committed the ostensibly criminal act. I say “ostensibly” because these immunity defenses always home in on the so-called mens rea element — there is usually no dispute that the act was committed; the question is whether it was coupled with criminal intent.
I am not looking to split hairs here. The judges and other commentators are right to observe that a person could not get away with robbing a bank or passing counterfeit money on the president’s say-so. Everyone knows those acts are crimes and would be crimes if the president himself committed them. While the president may decline to enforce the criminal laws, and even pardon past crimes, he has no power to immunize crimes — at least outside the standard procedures for authorizing undercover investigations and seeking judicial-immunity orders.
That, however, is not what we’re talking about. Here, we are talking about a very peculiar situation: The law in question — seditious conspiracy — requires prosecutors to establish a particular purpose of hostility toward the government; yet in this instance, the top official of the government convinced the people who used force that resistance was needed against elected officials and political operatives who were trying to destroy the government. Clearly, the incumbent Democratic administration wants for political purposes to portray what happened as “sedition,” but why — when there are plenty of serious, straightforward offenses to charge — would prosecutors complicate matters by charging sedition against people who can legitimately say they were trying to protect the government at the president’s behest?
The best option would be to avoid that charge. Instead, the Justice Department seems to think it can square the circle by pretending, as its press release announcing James’s guilty plea does, that President Trump’s conduct was irrelevant. You know: If we don’t mention him, maybe the problem will go away.
That and, of course, they’ve now got a guilty plea.
Here is some inside baseball for you. As an abstract legal technicality, if A and B are charged with conspiracy and A pleads guilty, A’s guilty plea is not admissible evidence that B is guilty. Yet, in the real world of jury trials, every prosecutor knows there is nothing more powerful than for one conspirator, who has become a government cooperating witness, to testify that he pled guilty to the very same conspiracy charge that is lodged against the defendants on trial. Once someone tells the jury that he has admitted to conspiring, it becomes very hard for the other defendants to convince the jury that there was no conspiracy — that no conspiracy could have existed because they lacked the requisite criminal intent and motivation.
So why did Joshua James plead guilty if he could have raised the same mens rea defense as all the other seditious-conspiracy defendants? Perhaps because his lawyers have told him that no judge is going to throw out the Capitol-riot sedition charge. Perhaps because they’ve told him that if he pleads guilty with cooperation, the law allows the court to sentence him to no time in prison; whereas if he fights the case and is convicted at trial, he could be looking at up to 20 years’ imprisonment under the sedition statute — and even if it’s less under the federal sentencing guidelines, it would still be a lot more than zero.
It will be fascinating, in any event, to watch things unfold in the next few months. For both the House January 6 Committee and the “Sedition and Conspiracy Strike Force” prosecutors, it will be all about the Capitol riot. On Capitol Hill, that means the question will be: How did President Trump incite an attack on our democracy? In the federal courthouse a few blocks away, though, the question will be: President Who?