In January, as part of its investigation into the insurrection, the DOJ charged Stewart Rhodes and 11 other co-conspirators with (among other things) seditious conspiracy. Stewart Rhodes, a Yale Law graduate, founded the Oath Keepers, a large but loosely organized anti-government militia that helped plan and carry out the January 6th attack on the Capitol. The trial starts this week for Stewart Rhodes and six others.
Seditious conspiracy is a big deal. Here are the elements of the crime:
- Two or more persons
- conspire to overthrow or destroy
- by force
- the Government of the US or to levy war against them . . .
To obtain a conviction, the prosecutor has to prove each element of the crime beyond a reasonable doubt. The key to seditious conspiracy is “by force.” Treason is almost impossible to charge because of how it has been defined in the Constitution and by the courts. Article II, Sec. 2, Clause 1 of the Constitution says:
Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Supreme Court has said that the “enemy” must be a country in which we are at open war, meaning a war declared by Congress. Even when Julius and Ethel Rosenberg were convicted of handing nuclear secrets to the Soviets at the height of the cold war, they were convicted of conspiracy to commit espionage, not treason.
So seditious conspiracy is the closest we have to a charge of treason. It’s rarely charged, and hard to prove.
So now, facing trial, Stewart Rhodes put forward what is known as the Public Authority defense. In essence, he claims he was fulfilling Trump’s wishes, so it was not an anti-government attack. In opening arguments, the defense claimed that Rhodes and his pals “had no part in the bulk of the violence that occurred on January 6th,” — they were there as “peacekeepers” believing that President Donald Trump could invoke the Insurrection Act to mobilize private militias.
Shortly after the insurrection, in this piece for The Washington Post, Mark Reichel and I predicted that the key defendants would use this defense:
As Mark and I explained in our piece, this defense puts Trump center stage. Defendants will have to take the stand to explain why they were relying on Trump’s authority. For their belief to be reasonable, they need to draw a connection between Trump and the Oath Keepers. In this post, I explained how complex investigations work: The DOJ work from the periphery toward the center, gathering evidence about the key players. Evidence from Rhodes and others about a connection between Trump and the Oath Keepers would strengthen a case against Trump.
In fact, the defendants have already started putting forward evidence that they were in contact with Trump’s inner circle and awaiting orders. Former Oath Keeper John Zimmerman testified that the group’s leader, Stewart Rhodes, was in contact with a Secret Service agent. Rhodes himself plans to take the stand and testify that he was merely awaiting Trump’s orders and believed he was defending the government against an attack, not attacking the government. We already know that Joshua James was in Roger Stone’s hotel room the morning of the insurrection and militia members were providing “security” for members of Trump’s inner circle. The question is whether any credible evidence will emerge linking the Oath Keepers to Trump.
On Twitter, someone asked:
Isn’t that defense what the Nazis used? They were just following orders?
No. This is different. The Public Authority defense works like this: Suppose a police officer tells you that you can park in a particular spot. You park there. Then another officer gives you a ticket. Your defense: You reasonably relied on the authority of the first police officer that parking there was legal.
In the defining case, United States v. Tallmadge, a federally licensed gun dealer told the defendant that his circumstances fit into an exception to the prohibition against felons owning firearms. The defendant relied on the dealer’s word and purchased the firearm. The court found that licensed firearm dealers are federal agents for gathering and dispensing information about the purchase of firearms. It was reasonable, therefore, for the defendant to rely on the dealer’s word. The defendant was thus found not guilty.
To take another example, in 2007, 12 residents of Sacramento and Fresno, Calif., were accused of plotting to overthrow the communist government of Laos. The U.S. attorney’s office dropped the charges after Mark Reichel, representing the defendants, pointed to evidence that they were lured into the conspiracy by an undercover federal agent posing as a CIA officer. The defendants reasonably believed they were acting at the urging of the American government and therefore weren’t guilty of entering a criminal conspiracy.
Given the things these guys did, the defense has almost no chance of working, but it was predictable that they’d try it. It will be interesting to see how (if at all) Stewart Rhodes and his co-conspirators incriminate Trump.
No, They Are Not Being Blackmailed
This week, on CNN, Republican Senator Rick Scott, while making excuses for Trump, referred to him as “the president.”
Asked on CNN about Trump seemingly making a death threat against Mitch McConnell, Rick Scott refuses to condemn it, saying "the president [sic] likes to give people nicknames. I'm sure he has a nickname for me." pic.twitter.com/NGgzh9U5rI
— Aaron Rupar (@atrupar) October 2, 2022
That Trump is the president is, of course, the narrative Trump is trying to create. It is also essentially his “defense” in the stolen documents case: He retains all the rights and powers of a sitting president. This meshes with his view of reality: he is the rightful president.
On Twitter someone said:
They’re all scared.
Someone else said:
What kompromat does Trump have on them?
Maybe they actually prefer fascism. Maybe they prefer Trump’s vision of America to an expanding liberal democracy that embraces diversity.
The theory that they are scared or blackmailed gives them a lot of credit. It assumes that without kompromat or fear of Trump, they would not support the current Republican Party and instead would embrace liberal democracy. It assumes that they’d be doing the right thing if they weren’t scared.
The only “fear” I see is that if they don’t support Trump they will lose elections. But anyone who embraces fascism in order to gain power is . . . a fascist. Right?
Trump Takes His Special Master Case to the Supreme Court
Last week, I wrote about Trump’s special master case. (If you missed it, it’s here.) Just to clarify what’s happening here. Trump is not appealing the issue that was under dispute: Whether the FBI could continue its criminal investigation into Trump’s handling of the classified documents while the appeal is pending. He is appealing (on very narrow jurisdictional grounds) whether the special master can continue to review the classified documents as the criminal case against him progresses.
His argument is almost 100% likely to fail because (1) the argument is a weak one and (2) to get emergency relief from the Supreme Court, Trump must show that he will be irreparably harmed by the error if the Supreme Court does not step in and make it right, and there is no way he would be irreparably harmed.
Because the issue is so narrow, even if he wins, criminal investigation into his handling of the classified documents continues and the whole point of his lawsuit is to try to put roadblocks in the way of the criminal investigators.
The 2022 Elections
I just signed up to work more than 50 hours in the next month doing voter protection legal work. It’s super important to help with the election if you can. Contact your local Democratic Party to see how you can help, or check out my do-to list, which has ideas for helping with elections.
And now, some Dog Content
This look is Dog Talk for, “So what if he’s sleeping? Why won’t you let me in so I can jump on him?”
(If you’re wondering: No, I didn’t let him in!)
JJ would like to appeal that decision.
If the Oath Keepers successfully establish a Public Authority defense, does that make the case stronger against Trump?
I would think so because the only way to establish that defense is to show that they were actually awaiting Trump’s orders. The belief has to be reasonable. In other words, there has to be a good reason to believe it. Rhodes is a Yale law school graduate, which means he understands that his belief has to be reasonable.
How much longer can trump drag out these cases before he is indicted? Why didn’t FBI/DOJ search trump tower and Bedminster already?
Hi, Parry, for answers to these questions, see the FAQ page I wrote. It’s a “sticky” so if you go to the “blog” tab in the menu, you can find t.
As far as searches, the FBI cannot search without a judge’s approval, which requires probable cause that evidence of a crime can be found in a particular location. A hunch is not enough. The judge won’t approve the warrant without more solid evidence.
With respect to the section on being blackmailed, blackmail is undoubtedly too strong an accusation. But when they are all singing the same song it leads me to wonder who is writing the music. If Trump is the songwriter, he’s changing the tune frequently which leads me to wonder if there isn’t someone directing the choir to follow Trump’s lead.
It’s a typical fascist agenda. They all imitate each other. Bolsonaro imitates Trump, who imitates Putin, who follows the teaching of Ivan Ilyin. The political psychologists tell us that this behavior comes naturally to a certain segment of the population.
I may use your question as a spring-off point for a discussion because it’s important not to look for conspiracy theories to explain something that is apparently natural: An inclination toward this kind of extremism.
Search my blog for “The Authoritarian Dynamic” for a better explanation.
Two questions, please and thank you:
1. If Trump’s SC suit is granted, would it give copies of the classified docs to Trump’s attorneys? The special master already ruled that he has no need to see them and neither do the lawyers. But there seems to be this thread of desperation to get the contents of the classified docs back into Trump’s hands, which then makes me wonder why…
2. Please tell me what is wrong with the following: If you or I had been caught with a hundred classified documents, most likely we’d be sitting in jail. Meanwhile, possession of a hundred documents with classified markings, plus thousands of pages of other government documents, would be regarded by any judge as sufficient evidence to search any other location connected to us. So the kid-gloves treatment for Donald looks like deference to the politics and his status as a (supposedly) rich, white man and leader of a violent political faction. That that is realistic politics doesn’t make it an even-handed application of the law.
thanks, Teri! I assume this evidentiary requirement for searches also applies to exhuming Ivana’s coffin (hiding documents therein sounds conspirac-y but maybe not beyond the wiles of a Trump). What form would you expect “solid evidence” to take that would permit searches of any of his other properties??
For an answer to the second question, see the FAQ page. It’s a sticky, so you can find it through the blog tab. What you are doing is repeating a string of what I call rage-inducing simplifications (and Timothy Snyder calls Internet Memes).
As far as the second, we may as well wait to see what the courts do, which will not take long.
The coffin thing is a weird conspiracy theory that makes no sense at all. If he wants them to disappear forever, why not burn them?
Someone would need direct knowledge that papers were hidden in a coffin to warrant digging up a dead body.
The Republican Party has legendary message discipline. There are numerous examples over decades i of pundits, op-eds, and politicians spouting identical talking points responding to scandal or other accusations within a day or two. The messages have just gotten more detached from reality.
Liberals are having a real hard time wrapping their heads around the idea of the Republican Party as a fascist organization. I think it’s because they see government as an automatic self-regulating machine that they have been free to largely ignore their whole lives. To them, voting is a question of which guy do you like the most, like a reality TV show vote. I try to point out that the Republican Party has quickly slid from “legal” tactics like gerrymandering and vote suppression to flat out throwing out or ignoring votes they lose, based on fantastic assertions of fraud, but the idea that this is an attack on the literal foundation of our government and society doesn’t seem to sink in. Many, many public statements and that case before the Supreme Court now mean they are going to try it, and soon. What happens next is anybody’s guess.
My first reaction after seeing the news that Opec was cutting back 2 million barrels per day was – strongmen, authoritarians working in concert.
A couple thoughts…
“Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. ”
So 2 out of 3 for Tucker Carlson, is my take. We haven’t yet formally declared war against Russia.
“Maybe they actually prefer fascism. Maybe they prefer Trump’s vision of America to an expanding liberal democracy that embraces diversity.
“The theory that they are scared or blackmailed gives them a lot of credit….
The only “fear” I see is that if they don’t support Trump they will lose elections…”
The word “fascist” doesn’t have a lot of meaning for these people, and it’s a nebulous, shifting, ill-defined word anyway, making it easy for the enemies of liberal democracy to turn it around and project it onto their own enemies (Jonathan Goldberg’s “Liberal Fascism”, is a case in point).
These people are against liberal democracy because they view it as losing power for themselves. Many of them have seen their power slip away for decades (both economic and political). Trump just happens to be the guy who can give voice to this “victimization” and (most importantly) has demonstrated his skill and “courage” at breaking the “unjust” laws and most importantly, getting away with it (this is where all the improbable heroic imagery of Trump as Rambo comes in). The laws and government are “unjust” by definition, because these people feel threatened by them, have been for years, and therefore anyone or any action against them is seen as legitimate. Ashli Babbit is a virtuous martyr, never in a million years a law-breaker.
Theirs is a zero-sum world, either I win or you do, and anything is permissible in order for me to win, because if you win, it’s the end of everything. The “end of everything” for these people has been in progress for decades, long before Trump arrived. Propaganda that dehumanizes their enemies (Q-Anon’s satanic child abusers), which justifies any action against such horrible people, is really a last-stage manifestation of this victimization.
These people want to be a law unto themselves, displacing the one instituted by the Founders a few centuries ago. It’s like a virus that is taking over the operating system.
It seems like the “Trump told us to” defense has to become significantly weaker given Rhodes is a Yale law school graduate. Were that not the case, it’s almost feasible that somebody could be gullible enough to believe that a president, even a completely off the rails one, had the authority to circumvent the law. Trump was the sitting president on 6 January 2021, but as a law school graduate, he cannot legitimately claim he didn’t know that what he was doing, even if Trump did ask him to do it, was illegal. After all, even members of our U.S. military can be brought up on charges for following an unlawful order by a deranged superior, and that deranged superior would also face harsh punishment. This case really looks like it’ll help the DOJ in their case against Trump with the evidence that will be presented no matter the ultimate verdict.
Thank you for making the point there is no blackmail.
I totally agree that the most logical point is these folks are 100% in with trump and the fascist agenda. Unless someone thinks being “primaried” is blackmail.
We need not give the fascists any credit or any excuse (as much as it pains us to think this about our fellow countryman).
Do you mean this one?
Is Social Media Turning us into Authoritarians?
terikanefield.com/is-social-media-turning-us-into-authoritarians/
February 13, 2022
“These people want to be a law unto themselves…”
The Descent to Anarchy!
https://terikanefield.com/authoritarian-dynamic/
This one might be better
Thanks for another great post. Rick Wilson has argued that the other great fear GOP politicians have of Trump, in addition to getting primaried if they cross him, is of being physically harmed or killed by members of his unhinged base.
Yes, thanks for reminding me of that.
They always have the option of resigning. Voting to acquit Trump in the Senate, for example, because they are afraid is morally wrong. They care more about their jobs than their integrity, which leads us back to embracing fascism.
But I sure wish somebody would follow the money. My hunch is that Trump is funneling Putin bucks to obedient Republican office holders and candidates, thus explaining their fealty.
How do you know they’re not? Go back and read Merrick Garland’s speeches. I think the one he gave in January 2021 addressed this.
To me, I think wondering if Blackmail is a component comes so easily (automatically?) to so many of our minds is b/c the modus operandi of their strategies, behaviors, & messaging feels similar to what we know of the history of the mafia, and also as the result of popular mafia novels, TV shows & Movies. imo: There are some accurate archetypical similarities, and so I find it very helpful when your knowledgeable (legal, historical, practical) critical analyses point-out what makes these scenarios/this current situation w/these specific players different.
I think people believe there is blackmail partly because it’s hard for good people to realize that other actually prefer fascism.
I may write more about that this weekend, if something more pressing doesn’t come up.
Curious tidbit today: Bannon sentenced to 4 months for contempt.
I noted his atty Shoen said he helped his client evade a subpoena for “principles” during the defense.
That sounds less like a defense and more like a scheme to continue evading the subpoena BEFORE the hearing.
Would that give DOJ and others a crime/fraud exception for their communications? Seems it would be useful if so for 1/6, build the wall fraud and other cases?
Or too minor a reach?
They were relying on the defense that Bannon followed the advice of his lawyers.