It gets tedious to point this out (see, e.g., here and here), but as prosecutors take their victory lap for yet more seditious-conspiracy convictions today — this time, four members of the Proud Boys (a fifth was acquitted) — let’s remember that the Justice Department’s theory of the Capitol riot is the antithesis of the theory posited by the House January 6 committee and echoed by the media-Democrat complex.
The committee insisted that then-president Donald Trump directed his followers to storm the Capitol on January 6 in order to interrupt the peaceful transition of power. To the contrary, the Justice Department contended that the Proud Boys, the Oath Keepers, and other riotous rabble-rousers engaged in a violent uprising of their own volition. Preventing Joe Biden from supposedly stealing the election was among their pretexts, but according to prosecutors, these are domestic terrorists who perceive themselves as in hostilities against the government and the anti-traditional drift of society. (As DOJ’s indictment put it, “the Proud Boys describes itself as a ‘pro-Western fraternal organization for men who refuse to apologize for creating the modern world; aka Western Chauvinists.’”
It is not enough to say that the government did not allege that Trump directed the Proud Boys, and that the government never alleged that Donald Trump was an unindicted coconspirator in the Proud Boys prosecution. In fact, prosecutors fought off the defendants’ self-serving attempts to argue that they were being used as scapegoats for Trump and others wielding power.
Just as in prior seditious-conspiracy prosecutions, the government portrayed Trump as if he were a nigh-irrelevant side issue. As I’ve pointed out before, there are legal reasons for this. At the time, Trump was president — the most powerful official in the government. If the prosecution’s theory were that quasi-militias conducted an attack because they were ordered to do so by the president, then it would be impossible to argue that they were levying war against the United States and opposing government authority by force — the crime prescribed by the seditious-conspiracy statute. Their defense would be that they were defending the United States pursuant to the direction of the government’s commander in chief.
To my mind, while there is not sufficient evidence to charge Trump criminally for the violence (not least because he explicitly stated in the Ellipse speech that he expected a “peaceful” march on the Capitol), it is unrealistic to look at the riot as if Trump were an innocent bystander. On that, the January 6 committee had a point — Trump is certainly culpable morally and politically for what happened that day. But for political reasons, the Biden administration and Democrats wanted seditious-conspiracy prosecutions because it lines up with their political narrative that our democracy is under siege by Trump-loving, white-supremacist domestic terrorists.
They are thus playing a double game. To get the seditious-conspiracy convictions, they structure prosecutions as if Trump were irrelevant to the riot. Then, once they’ve got the convictions, they chirp that, right after Trump gave an inciting speech, Trump supporters violently attacked the Capitol to try to keep him in power.
Trump’s performance in the two months leading up to January 6, and in the time since, has been disgraceful — impeachable. But that should not obscure the remorseless fact that he has not been charged with committing a violent act, and that, in its prosecutions, the Justice Department has zealously fought against defense efforts to claim that Trump was criminally responsible for the violence at the Capitol.