Conspiracy or Farce?

For their actions on January 6, 2021, eleven members of the “Oath Keepers” have been indicted for Seditious Conspiracy (18 U.S.C. §2384), which is defined thus:

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.

Byron York describes the actions that led to the indictment as “The LARP rebellion”. He likens the “conspiracy” to a role playing game. It sounds to me more like a scenario for a Mel Brooks farce.

What to make of it all? First, the Oath Keepers really were a gang of idiots. What were they thinking? In what fantasy world did they, unarmed and careening in golf carts, plan to install the next President of the United States? Reading the indictment, it's hard to avoid the conclusion that it all was an elaborate bit of LARPing – that is, live-action role-playing. The indictment is filled with page after page of fantasy talk.

But of course, the group did discuss interfering with the transfer of power. They talked about civil war. They brought guns to the Washington area, although, careful to observe local gun laws, they did not use them or even bring them into the District of Columbia. They were part of the mob that entered the Capitol, although it does not appear that any of them engaged in any violence. And now, for it all, they have been charged with seditious conspiracy.

The indictment raises questions about whether it is correct to refer to the Capitol riot as an “insurrection” or “sedition”. Obviously, the investigation has given rise to an indictment for seditious conspiracy. But can the actions of a group of 11 LARPers accurately describe the motives and actions of the hundreds of people at the Capitol, and thousands more in the area, who had no connection with the Oath Keepers? A recent poll showed that many Americans view the Capitol riot seriously, but as a protest that got out of hand. The new indictment will probably not change their minds.

If the facts stated in the indictment are true – they certainly sound plausible – the actions of the accused undoubtedly fall within the literal terms of the statute. On the other hand, the “force” with which they planned “to prevent, hinder, or delay the execution of any law of the United States” was so patently inadequate as to raise questions about whether the conspirators had any real objective in mind. Do conspiracies to make futile and stupid gestures rise to the level of sedition?

How, indeed, does one distinguish this particular “sedition” from numerous other protests against other government actions? When opponents of confirming Brett Kavanaugh’s appointment to the Supreme Court massed in D.C., their goal was certainly to overawe the Senate into rejecting Judge Kavanaugh. If some of them had used rhetoric like that of the Oath Keepers (and some probably did), would that have been “seditious conspiracy”, too? Overheated partisans often jabber about “forcing” Congress or the President or the courts to do this or that? More “sedition”? Are we all seditionists now?

Comments

[Stephen Clark]

"...conspire to overthrow, put down, or to destroy by force the Government of the United States...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,..."

It doesn't take much imagination to stretch these parts of the statute to include many demonstrations (seizing by force US property or delaying execution of US law) or the fevered dreams (conspiring to overthrow, put down, or destroy by force, etc.) openly expressed by radicals of many stripes over many years. No statute of limitations? Well...the dragnet sweeping up aging boomers for their 1960's and 70's enthusiasms could be entertaining. That said, this law is being used for precisely the purpose it was written and is of a kind with the Alien and Sedition Acts.