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The Charge of the (Very, Very) Light Brigade, Biden-Garland Version.
I. Some Preliminary Background to my Different Take on These Indictments.
While the title and sub-title of this piece might suggest otherwise, this will be, or attempt to be, a very serious discussion about most serious matters raised by the indictment handed down recently charging several so-called “insurrectionists” with the most serious charge of “Seditious Conspiracy”. That said, my take on the aspects of this case which strike me as the most grave may not- surely will not- be the same as those so gleefully cheered on by the Democrat-Media-Never Trumper- RINO-January 6 was an armed insurrection! crowd, but I repeat myself. And, to be as clear as I know how to express it in words, everything said here is against the universal revulsion we all have felt by the damage to property and persons that day-most especially the cruelest act of all, the inexplicable shooting of Ashli Babbitt, and the hysterical, near-maniacal reaction of certain of our “leaders” describing it as the worst threat to the Republic in its entire history.
Having made the necessary confession about what 99% of us feel about those who engaged in excessive and clearly disrespectful behavior, reserving a little wiggle room for those swarms of extremely dangerous, extremely extreme right-wing extremists (how is it that extremists are always of one side of the aisle?) the above-mentioned groups seem to think lurk behind every tree in America, I will list a few of the serious aspects of this indictment as I see them. It will come from a very different viewpoint from that screeched by most of those in the commentariat—those individuals and their families, fellow American citizens one and all, targeted by this extreme (strange what a perfect fit that word is here!) abuse of power by the most politicized Department of Justice in American history.
Here are just a few of my concerns about what these charges may, and in all probability will, mean for those fellow American citizens who are (more and more just theoretically) protected by the Constitution and Bill of Rights:
- The serious disaster- personally, financially, etc.- this indictment will visit upon these citizens and their families.
- The serious consequences which will be inflicted upon them and their families and their homes as a result of having to incur legal fees approaching millions of dollars, almost certainly wiping out their life savings and, as in the case of Gen. Flynn, the loss of their family home.
- The serious loss of any reputation in the community of these citizens merely by virtue of being accused, the presumption of innocence long ago largely diminished if not destroyed in this country (see, e.g., the Duke Lacrosse cases as one of many examples).
- The serious targeting of American citizens, most repugnantly veterans, who have served their country, many in harm’s way many times, for their political views and their exercise of what we were all taught from early childhood were our God-given rights under the First Amendment and, most critically in this case, the Second Amendment.
- The serious, and chilling, ruthlessness of the DOJ prosecutors as shown by the fact that it took a year to bring the most serious charge possible, plotting to overthrow the government, and then only after relentless pressure by the far-left to “do something.”
- The serious lack of awareness and of any sense of professional pride it must have taken to write this line in the indictment and not realize how infantile it made the entire accusation appear: “Stack Two sped to the area near the Capitol on golf carts and then marched onto the Capitol grounds, ultimately to the east side.” (Author’s note: as the proud owner of a golf cart, I can personally attest that one does not “speed” anywhere on a golf cart. In fact they are known by the acronym LSV, for low speed vehicle.)
- The serious, dangerous, provable pro-prosecution inclination of the Judges of the District of Columbia Federal Court as shown by their inexplicable, in most cases, determination to hold many if not most of the Jan. 6 defendants without bail pending trial. This one, I must note, as a member of the Bar, really pains me to have to make explicit note of this troubling aberration in the conduct I came to expect, and respect, from most members of the Bench I appeared before. I am hardly the first to note this phenomenon (see excellent articles by Julie Kelly in American Greatness) nor will I be the last.
- The gravely serious threat to these fellow American citizens and their freedoms posed by the fact that these cases will be tried to District of Columbia juries, drawn from a population which went for Biden by, at last count, approximately 99% of the district.
II. Brief Review of the Indictment and the Law- What Is A Seditious Conspiracy?
The big Red Alert headlines have mostly concerned the charge of Seditious Conspiracy although there were other, comparatively minor, charges lodged against some of the defendants as well. Thus, the best place to start this discussion is the actual wording of the statute itself, shorn of the gloss put on those words who were, in the words of a title of a column published shortly after the incident, Desperately Seeking Sedition:
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 under this title or imprisoned not more than twenty years, or both.
As Professor Jonathan Turley has pointed out in an article entitled The Oath Keepers: What the Indictment Says and Does Not Say About the January 6 Riot, charges under this statute are very rare, partly because:
The provision in 18 U.S.C. 2384 has long been controversial because it is so sweeping and includes any effort “by force to prevent, hinder, or delay the execution of any law”[.]
As a matter of fact, one who reads this 48-page indictment carefully cannot help but note that the word “force”, or variations of it such as “use of force”, etc., appears numerous times in the document – at least 15 times by my rough count. This, it seems to me at least, is a bizarre way to describe the conduct of citizens not a single one of whom brought a firearm of any description whatsoever to, or into, the Capitol that day.
Prof. Turley sets out this brief summary of the indictment:
The indictment itself details the same extremist rhetoric and calls that we have seen from extremist groups on both the left and right in past years. It is an unsettling part of this age of rage. The defendants adopted pseudo military jargon and beat their chests about the coming civil war. It is important not to dismiss the danger that such groups pose. They come across at points as clowns but this is why clowns can be so scary. They are clowns who openly discussed storing weapons and fostering a civil war. The indictment details evidence that most of these men entered the Capitol and encouraged the rioting. Most of the charges are similar to those in other cases in that respect and seem well-based.
It is really the first charge that has drawn the most attention and is likely to draw the most litigation. However, as discussed above, keep in mind that a conspiracy requires only two people to conspire by force to hinder the execution of any law.
Nevertheless, the Justice Department works hard to reinforce the view of this group as launching a military attack, using their own military jargon. It divides the group into “stacks” that “marched” on the Capitol.
Thus, Stack 2 (composed of just three people) is described as not walking but marching around the crowded grounds: “[Stack Two] breached the Capitol grounds, marching from the west side to the east side of the Capitol building and up the east stairs.”
The defense is likely to question these characterizations in pre-trial motions. Each “stack” was composed of a handful of people. Stack 1 was composed of Kelly Meggs, Kenneth Harrelson, Jessica Watkins, Jospeh Hasckett, and David Moerschel. Stack 2 was composed of just Joshua James and Robero Minuta. Then there is the ominous sounding “Quick Reaction Force,” which the indictment said was composed of only Thomas Caldwell and Edward Vallejo.
The indictment is strong on detailing the alleged violent rhetoric and machinations of the defendants. It shows men who speak of civil war and actively acquire weapons in the anticipation that they might be used.
He then offers an excellent analysis of the various “gaps and disconnects” offering the defense ample material that he, an experienced Criminal Defense Attorney (full disclosure: I am not now nor have I ever aspired to be a Criminal Defense Attorney, which is one reason I sought out the opinions of experts such as Prof. Turley in the preparation of this essay) expects “could cause difficulty at trial on the sedition conspiracy charge.”
These are eleven people who were not armed with guns and some apparently never entered the Capitol. While the Justice Department discussed plans for river landings and arsenals of weapons and forces held in reserve, the individuals in Stack 2 were equipped with:
“battle apparel and gear, including hard-knuckle tactical gloves, tactical vests, ballistic goggles, radios, chemical sprays, a paracord attachment, fatigues, goggles, scissors, a large stick, and one of the Stack Two member’s 82-pound German Shepherd named ‘Warrior.’”
That is undistinguishable (and in some cases less lethal) than material seized from Antifa, Proud Boys, and other rioters in prior summers. Despite buying and storing weapons, they did not bring them to the Hill, did not use them, and left the Hill with many others. Only one, Joshua James, is charged with the broad offense of “assaulting, resisting, or impeding certain officers.” (Count 8). The rest are charged with the common crimes of trespass, obstruction, and unlawful entry.
Although a complete reading is not, as the old saying goes, for the faint of heart, it does offer one a glimpse into the ruthless, bloodless determination of the Biden-Garland DOJ to finally get some “big” headline charges on the board about January 6. There are pages and pages detailing many “private encrypted messages” (private no more! Memories of the Stasi, anyone?) about plans from the mundane such as hotel reservations and where to meet for breakfast to matters as war-like sounding as the possibility of an amphibious landing in the District after a Potomac River crossing transporting allegedly heavy artillery. There are also repeated – and scary!- details about Rhodes making stops along the way from his home in Texas to DC to buy guns and accessories, although it would seem, barring any regulation on the number of such items one may purchase, this activity would be protected under the Second Amendment, however repulsive the far-left finds that Sacred commitment of self-defense made by “Nature and Nature’s God” and passed to us by The Founders.
III. There’s a Reason Prosecutions for Seditious Conspiracy are so Rare: It’s Called The First Amendment
Since the days of Woodrow Wilson punishing dissent greater and greater restrictions have been placed on that kind of repression and the Supreme Court, in its Brandenburg decision in 1969 took a very expansive approach to what kind of speech would be protected by the First Amendment. In fact, one who reads that opinion today is astonished at the language used by KKK member Brandenburg, language which would today almost certainly cause a reprise of the George Floyd riots. Here are the words of Prof. Geoffrey Stone, a constitutional law scholar at the University of Chicago and author of the book Perilous Times: Free Speech in Wartime, From the Sedition Act of 1798 to the War on Terror:
It’s important to understand why the Supreme Court ultimately took such a strong free speech protective approach in Brandenburg. What it recognized, in light of our own history, is that if the government has the authority to punish people for criticizing the government, that obviously is completely incompatible with a well-functioning democracy. The Justices came to realize that the temptation to prosecute speakers for speech that is critical of the government, because they want to shut those people up, not because they actually are likely to cause any serious harm, is extremely dangerous to democracy. It has to be an extraordinarily exceptional situation to punish speech. The government can punish the actors, but it can punish the speech only in those situations where there’s really no ambiguity about what they intended and what the risks were. If you don’t have an extremely demanding standard, you invite prosecutions of critics, and that’s not acceptable.
Another First Amendment scholar had this to say a few days after these indictments were handed down, in a column entitled Seditious conspiracy charge against Oath Keepers founder and others in Jan. 6 riot faces First Amendment hurdle. It is interesting to note his comments about similar charges having been considered against Black Lives Matter in connection with the riots in DC and Portland:
The words of the seditious conspiracy law – using force to “prevent, hinder, or delay the execution of any law of the United States” or to “seize, take, or possess any property of the United States” – may be broad enough to sweep in certain kinds of civil disobedience, disruptive protests at the Capitol and elsewhere, and plans to resist mass arrests.
Such concerns may be yet another reason prosecutors had seemingly been reluctant to rely on seditious conspiracy charges for the Jan. 6 defendants.
History demonstrates how broadly worded sedition laws can suppress protest and dissent. During the World War I, pacifists and dissidents were frequently charged with sedition and seditious conspiracy based on their political advocacy and criticism of government.
The First Amendment, which broadly protects dissent, would not permit such prosecutions today. Modern interpretations of freedom of speech impose stringent requirements in prosecutions for “inciting” violence. However, a successful prosecution for seditious conspiracy in the Rhodes case may create a precedent for going after demonstrators who commit ordinary crimes, such as damaging a police car or occupying a federal building, or who engage in other acts of civil disobedience.
This danger is not entirely speculative. In 2020, the Trump Justice Department considered charging Black Lives Matter protesters with seditious conspiracy in connection with demonstrations in Washington, D.C., and Portland. The Justice Department ultimately decided not to go down that road. To be sure, factual and other distinctions can be made between those protests and the storming of the Capitol. But in the hands of a zealous prosecutor, the potential for abuse is clear.
As the standard “allows for controversial, even incendiary, speech, unless there is an immediate threat that the speech will foreseeably lead to illegal behavior by the audience”, the trial on these charges will – unless more facts come out beyond what we know now, a highly likely prospect, to be sure- they will show that the leader, Rhodes, and Caldwell, and perhaps others, never set foot in the Capitol. They will also show that not one of the defendants was armed and there will be testimony, such as that Rhodes gave in an interview, as follows:
“Just so we’re clear on this: We had no plan to enter the Capitol, zero plan to do that, zero instructions to do that,” Rhodes said.
They will also show that the defendants had arranged to have a supply of firearms and ammo at the ready across the Potomac, a fact which will apparently be at the core of the prosecution’s case. However, since the central element of the charge is, according to the words of the statute itself, that the defendants “conspire[d] to … 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…”, it is, to be most charitable to the Government’s case (admittedly not an easy task for me) difficult to understand how this “lean, mean fighting machine” – of eleven unarmed “warriors”— could possibly have delayed or hindered anything going on that day in the Senate Chamber. No trial lawyer with a modicum of experience would even try to predict what will come out at trial and I am, most emphatically, not doing so here. I am only attempting to see how the known facts, and those recited in the indictments, fit the language of the statute under which these charges are being made. To me, it appears to be a bit of a stretch (Dare I say, even for a DC jury” Alas, that is the real wild card in all of this.) in view of the heavy burden of the DOJ to prove intent, or what was going on in these defendants’ minds. A heavy lift, indeed.
IV. Summing Up: An Unarmed “Army” of Eleven Mount the Charge-on Golf Carts! “The Mouse That Roared”?
I close this rumination on the latest action of the most politicized Department of Justice in American history by noting the words used by two of my very favorite analysts and observers of the current scene, Michael Anton and Victor Davis Hanson.
In discussing what he referred to as The ‘Civil War’ Psy-Op, pointing out the ludicrous idea that tiny groups like the Oath Keepers could seriously mount an attempt to overthrow the government, or any part thereof, Michael Anton had this to say:
Regime propaganda is so ubiquitous that even if, like me, you make no effort to seek it out and even take steps to avoid it, you can’t help but notice that our masters have fastened onto a new narrative: the coming “civil war.”
This was the crux of all the maudlin, dishonest January 6 retrospectives, of several “think pieces,” and at least three new books: America is facing a second civil war and it will be started by the Right.
Really? With what? In one of his more lucid moments, Joe Biden himself noted that the disaffected on the Right have no chance of taking on the United States government without F-15s and nukes. Like the blind squirrel finding a nut, the old man was onto something. The government’s overwhelming advantages in technology, firepower, manpower, money, transportation, supply networks, surveillance tools and much else would be so lopsided as to make the military buzzword “asymmetric” a grim joke. Think, instead, Bambi versus Godzilla.
But I have found no brief grouping of words that better describes these charges and the curious (corrupt?) parallels between the conduct of the now-criminally accused Oath Keepers and the totally unscathed Antifa rioters who committed so many unspeakable acts of cruelty and violence across the country than these comments by Victor Davis Hanson in an article entitled Conspiracies as Realities, Realities as Conspiracies:
New insurrectionist indictments—by Attorney General Merrick Garland in response to left-wing pressures—targeted a disorganized and psychodramatic group of self-important Oath Keepers wannabes and poseurs. In contrast, serious insurrectionists do not leave their guns behind in order to abide by strict D.C. firearms laws. They do not ride to their rendezvous at the Capitol in golf carts. And they do not stage an insurrection by being unarmed as they scatter about, yell, confront police, raise hell, and meander through the Capitol.
If these had been serious insurrectionists, they would have followed the Antifa model: arriving stealthily in the many hundreds if not thousands, melting through crowds to assigned locations, in black with padded body armor, helmets, various clubs, and carefully coordinating their weeks-long and sustained violence on approved social media.
Equal Justice Under Law?