Seditious conspiracy: the charges against the eleven Oathkeepers who participated in January 6th
When I was in law school many many years ago, I studied Criminal Law my first year, as did virtually all law students at the time. As part of that course, there were three criminal doctrines I found disturbing – they probably weren’t the only troubling ones, but they were by far the most memorable. These three were felony murder, conspiracy, and the possibility of entrapment by government agents in connection with conspiracy. These doctrines seemed either overinclusive (felony murder), perilously vague and close to thoughtcrime (conspiracy), and difficult to defend against because they cut into the defendant’s presumption of innocence and arguably allowed the government to plant the idea and even the execution of the crime (entrapment).
This was my impression and the cause of my concern back then and it still is now, although back then I was a Democrat and now I’m not. At the time, many Democrats would have agreed with me, because – particularly with conspiracy charges – the left were often the targets. Nowadays, however, the left has taken charge of many legal agencies of the government, and seems eager to employ these tools to imprison people they consider the enemy. This is the case even if those people have done very little or even nothing to harm anyone. At the very least, even if they’re not convicted, the goal is to put them through such misery that it scares and dissuades anyone else.
Which brings us to “seditious conspiracy” – the charges against eleven Oathkeepers present in the vicinity of the Capitol on January 6, 2021. That is a doubly vague and flexible charge that consists not of violent activities carried out, but of thoughts and speech and plans and preparations, containing two flexible terms (sedition and conspiracy). That makes it useful for employment against political enemies.
Here’s the definition of seditious conspiracy:
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined or imprisoned not more than 20 years, or both.
So the whole thing hinges on two elements. The first is the idea that when two people plan something it’s worse than when one does. That is sometimes the case, but not necessarily. The second element is the definition of “conspire.” In common usage it simply means to make secret plans to commit a harmful or unlawful. act. How far do the plans have to go? How detailed, and what sort of actions need be taken, before the charge can stick? I don’t know enough about the details of those things, but there’s no question that no violence has to actually occur for the crime to have occurred.
So far the charge has rarely has been used against anyone in this country. But it’s being used against eleven of the January 6th defendants. Here’s some recent history about such charges:
Sedition has rarely been charged in the U.S., and carries a longer prison sentence than simple conspiracy. If convicted of seditious conspiracy, defendants face up to 20 years in prison.
Per the Associated Press, the last time U.S. prosecutors brought a seditious conspiracy case was in 2010, when nine members of the Hutaree militia in Michigan were charged with inciting an uprising against the government. They were acquitted on the sedition conspiracy charges at a 2012 trial. (Three pleaded guilty to weapons-related charges.)
I had no recollection of the Hutaree case, but it’s an interesting one that occurred during the Obama administration. The group seems to have been Christian survivalists, and the circumstances were these:
From March 28 to March 30, 2010, nine people thought to be Hutaree members were arrested in police raids in Michigan, Ohio, and Indiana (in Hammond), for their alleged involvement in a plot to kill various police officers and possibly civilians using illegal explosives and/or firearms. An undercover [FBI] agent played a role in the investigation that led to indictments.
Only one undercover agent? And what was that role? Was it on the up and up, or did this person’s actions border on entrapment? With groups like this, infiltration and surveillance by agents and/or informants is often necessary to get the goods, and agents have to at least seem eager to participate within the group, in order to not arouse suspicion. But they must not become leaders. They can’t be instrumental in the planning or lead the group to actions it would not otherwise undertake. And yet we know that sometimes, perhaps even often, they either do just that or something perilously close to that.
Here’s more about the charges in the Hutaree case [emphasis mine]:
The United States Attorney’s Office stated that the Hutaree allegedly planned “to kill an unidentified member of local law enforcement and then attack the law enforcement officers who gather in Michigan for the funeral”. The press release further stated that nine had been indicted by a federal grand jury in Detroit on charges of seditious conspiracy, attempted use of weapons of mass destruction, teaching the use of explosive materials, and possessing a firearm during a crime of violence. The indictment said that the Hutaree planned to attack unspecified law enforcement vehicles during the funeral procession for an unspecified officer or officers they planned to kill on an unspecified occasion, using unspecified explosively formed penetrator improvised explosive devices…
Some articles suggested the Hutaree had not yet determined whom they would kill in law enforcement, or even that they wished to kill a law enforcement officer to begin a war with law enforcement, while not having any specific target. The FBI was aided in its investigation by members of another militia group.
This was the defense, in a nutshell:
Defense attorneys argued that statements made by Hutaree were constitutionally protected free speech and not plans for an attack.
They were acquitted by the judge, with a few pleading guilty to possessing illegal weapons.
Prior to that there was an actual conviction for the charge – in 1954, in connection with an attack that was carried out and which wounded five members of the House. That was the Capitol shooting by Puerto Rican separatists that I wrote about in this post and also in a post I wrote a few days after January 6th, comparing and contrasting it with that latter event. In the 1954 incident, there was no question that the perpetrators did not merely conspire to do something; the shooting actually took place.
The accused were found guilty, but they were pardoned by Jimmy Carter in 1979 and and returned home to Puerto Rico to a heroes’ welcome.
[NOTE: I plan to write more on the charges against the eleven January 6th defendants, but this post is already long enough, and so I’ll do it separately.]
The DOJ knows there’s no possiblity of a conviction based in factual evidence. The purpose of these charges is to placate the left’s hard leftist activist base, to intimidate those on the right not yet charged and as propaganda supporting the meme of a gathering domestic terrorist threat.
It is increasingly obvious that it is the left that is engaged in seditious conspiracies.
And while our government is focused on “domestic terrorists,” that is, political opponents, there is a probable actual Islamist terrorist holding hostages at a synagogue outside Forth Worth, Texas.
I doubt anyone there on Jan 6 had thoughts to take over anything. They are trying to gyn up anything to continue the investigation and harassment of any Trump supporters.
Geoffrey Britain:
I believe there is definitely a possibility of convictions here. They got ammunition, talked about civil war being necessary, etc.. Whether or not this justifies a conviction, a conviction depends (IMHO) on the political disposition of the judge or jury hearing the case. I believe this case will be heard in DC. You can rest assured that the DOJ will put everything it’s got into this case.
The government knew who the Oathkeepers were, I’m pretty sure, and that makes me think that they probably were monitoring them prior to 1/6 and knew all about their plans beforehand (I don’t know about the role of any agents or informants that might have been part of it, but I would imagine that at the very least they were being monitored online).
neo,
To clarify, I agree that there’s a real possibility of conviction, just not a conviction based in factual evidence.
It’s neither a crime to buy ammo nor to express the opinion that civil war will prove to be necessary to retain liberty in the face of the ongoing Marxist takeover of America.
Demonstrating that the left is dominated by Marxists who make no bones about fundamentally transforming America into a Marxist state is far more easily done than for the government to factually prove that expressing an opinion equates to acting upon it.
But should a Marxist takeover occur, armed resistance to it cannot legitimately be labeled an insurrection, as our inalienable rights do not rest upon government approval. Liberty cannot be legitimately denied to a free people nor can a majority remove it.
This is our most fundamental disagreement with the left. As collectivist ideologies are incompatible with individual liberties granted by a creator.
Here are some specifics on the asserted basis of these indictments from justice.gov – https://www.justice.gov/opa/pr/leader-oath-keepers-and-10-other-individuals-indicted-federal-court-seditious-conspiracy-and which now supersede their prior indictments for ‘obstructing an official proceeding’, though apparently on the same evidence.
I think it’s fair to wonder whether these charges are a response to criticism of the Democrat’s exploitation of Jan 6th and concerns that the FBI had abetted the escalation of that event.
You’ll notice that while the indictments claim these individuals were prepared to arm themselves with firearms and to have arms brought to the site, they don’t actually claim that they were carrying firearms during the incident. Most of the major media coverage I’ve seen asserts or strongly implies that they were carrying firearms.
To my knowledge, that provision of arms claim is based on a communication from Caldwell to the Three Percenters, an allied group, and was for ‘heavy arms’ to be brought by boat across the Potomac. Heavy arms are mounted and typically crew served weapons like howitzers and recoilless rifles. It’s unlikely that anyone attempting to stage those near the Capitol would survive very long. Caldwell is another instigator with FBI ties, as a prior section chief, and his proposal was absurd.
The emphasis on being “in any State or Territory, or in any place subject to the jurisdiction of the United States” is interesting. Groups can just go do their conspiring over in Toronto or Tijuana.
What bothered me in criminology class was selective prosecution and, what we were told, was the elimination of intent for many modern federal crimes. Anarchists attempting to violently shut down ICE facilities is obviously blatant seditious conspiracy, but the criminals are cute communists so they are treated as protesters because of selective prosecution.
The selective prosecution was also on display with the FBI’s decision to not prosecute Hillary regarding her email server with classified information. Comey stated she wasn’t prosecuted because she didn’t intend to violate the law, but intent is not an element of the crime, and this is deliberately so because it makes prosecution easier when the defendant is politically disfavored or a small person.
Retail lawyer:
Indeed. Selective prosecution is an ever-present reality. Prosecutors are supposed to choose the most important cases with the most evidence, because realistically they can’t prosecute everyone who commits a crime (and technically, we all violate laws all the time, sometimes laws of which we’re not aware).
But prosecutors use their discretion for revenge, career advancement, and of course political purposes. It can be very very pernicious. They have a lot of power both to prosecute their enemies and to hold off from prosecuting their friends.
It’s been said that the majority of 14 year old girls in internet chat rooms are FBI agents trolling for child molesters.
Sedition as a crime is usually seen during Fascist periods in American history such as the Wilson administration.
I do agree about DC juries. They love to convict Republican ham sandwiches.
Does “fined or imprisoned not more than 20 years” mean that the prison term is limited to 20 years but there is no limit at all on the fine? It can be a billion dollars, a trillion, a googol, Graham’s number, aleph sub one?
bof:
Good question. I don’t know the answer.
FWIW these guys are getting more of the book thrown at them than the 2019 protest leaders in HK.. none of whom will do anything like 20 years. I think so far the longest was for 7 years — and that was for engaging in street-level behaviour much more, shall we say, kinetic than the Jan 6 guys.
Mind you, both here and in the US, the authorities understand that half the fun is in dragging out the process and holding arrestees on remand for a long time. Many here are being found guilty now and sentenced and released for time already served.
Sobering thought, though.. that FedGov likes to start wars and subvert governments abroad for doing (sometimes) less than it does at home.
An event staged with an unarmed woman aborted, attack on an unsuspecting assembly of unarmed people, and a riot (disorder) forced causing collateral damage. Over 24 trimesters of handmade tales.
That said, no actionable offenses. Insidious convention to prosecute First Amendment rights.
Anarchists are far-right. The left-right nexus is leftist, totalitarian.
Gee, it’s amazing that none of the BLM or Antifa folks engaged in seditious conspiracy. It’s almost like this law isn’t being used as a weapon against the Marxists. I wonder why?
@ Chad King > “it’s amazing that none of the BLM or Antifa folks engaged in seditious conspiracy”
Antifa and BLM don’t meet the criteria of the definition.
They attacked mostly state and city governmental and private property (maybe some federal, but the Republicans were in control so that didn’t count, because the Trump administration was not a legitimate government, right?)
As for hindering the execution of the law – that’s the current Democrat policy for those they haven’t changed yet.
Important link/post from Instapundit (that is, if eviscerating the sorry state of the media/elites is of any importance):
MATT TAIBBI: ‘What Happened to the “Question Authority” Era?
‘Discussion with Author Walter Kirn.’
…wherein
‘The…humorist, journalist, and novelist talks about the downfall of journalism, bureaucratic absurdity, and class cruelty in a blistering indictment of an America turned upside down’—
https://pjmedia.com/instapundit/497547/
Judge: Do you expect a conviction on that flimsy evidence?
Proseutor: No, your honor. I have more flimsy evidence.
I say again, gee, whatever happened to Ray Epps, who incited people to enter the Capitol but did not do so himself. The FBI dropped its interest in him in June 2021, and he cannot now be found. Amazing. He was once the president of the AZ branch of Oathkeepers, a likely long-term FBI plant. Fibbies probably put him into their witness protection (sic) program.
I expect the FBI has an eye on this site, Neo.
We’d best all beware and take care, lest Merrick Garland draws a bead on us.
Cicero, it’s rather ironic – I was just the other day going back through the history of the Catilinian episode, and to see you writing in a thread about a ‘seditious conspiracy’ has an eerie feel of closing the circle. (But where or what is the senatus consultum ultimum in this case?)
@Cicero:
OK, I admit it, I’m a Fed. Just don’t tell Om, please.
@PhilipSells:
“(But where or what is the senatus consultum ultimum in this case?)”
Where it’s always been: packed in Cosmoline.
Ultima Ratio…
AesopFan:
Antifa and BLM cadres tried to burn down the Federal courthouse in Portland OR, and did the same to the Federal ICE facility in Portland OR in the summer and fall of 2020. An Antifa cadre tried to blow up and burn down an ICE facility near Tacoma in 2020, he died in a shootout with LEOs.
Cicero:
Z isn’t a Fed, unless the Feds are subcontracting to Xi. 🙂
Americans who honor the Constitution as written, who love freedom, do not fit onto the one dimensional Left-Right political line. That Left/Right axis was invented in Europe, France, leading up to the French Revolution and was then modified by Stalin after the USSR was attacked by the German National Socialists.
Left/Right has been very useful for those who would throw down the United States as founded. It is another lie by the Left.
geoffb: isn’t the “one dimensional Left-Right political line” basically a surrogate for the designation of a political spectrum between absolute [Owellian?] tyranny at one end and total anarchy at the other? The founders/ framers were of course seeking to find a suitable middle ground to balance and control our angels against our devils. No real world situation from history quite matches either extreme, but some conditions have come uncomfortably close before a more middle level position was re-established.
If you mean to assert that things do not fit solely along a single line, I have thought of portraying greater complexity as a Rolodex. The axis of the Rolodex drum becomes the L-R line you deride (i.e., the x-axis) and each card in the drum depicts a different parameter plotted against that axis. These parameters might include age, sex, race, educational level, positions on various policy issues, etc. Then each person’s [or group’s?] respective (x,y) value is plotted and if you take the total set of plotted points, they create a 3-D curve, presumably largely unique to each person [or group?]. But the total set of curves might still have some levels of collectiveness or correlation that would be useful to analyze. Or maybe not really – just a conceptual scheme with limited real world value. 🙂
R2L,
The left/right line came from the French assembly. Royalists on the right side and those opposed to the monarchy on the left side of the room. That morphed into right side supported the government, left was for revolution. Stalin, for his own benefit defined the National Socialists aka Nazis as right-wing and that is where we still are. The left uses that political line to define anyone opposed to them as Nazis And it has worked well for them.
Many have tried to formulate new lines or dimensions but they don’t get traction. My point is that there is no place on that line, that is used universally today, for Americans. We are outside of that way of viewing politics.
If our government is so pathetic that it can be overthrown with a handful of people, then that government is basically worthless. Then again the declaration of independence calls for the end of any government that is destructive toward the people. So what is the deal?