Punishing Rioters Is Wise. Bogus ‘Seditious Conspiracy’ Charges Are Not.
The problem with convicting members of the “western chauvinist” Proud Boys on seditious conspiracy charges is that it wrongly elevates a violent tantrum by a bunch of thugs to the level of an insurrection, and it lets officials who prosecute them puff themselves up as saviors of the republic. Worse, the case took liberties with a statute that is probably best forgotten to arrive at its conclusion when normal criminal law could have punished rioters without putting the criminal justice system through contortions.
Prosecutors High on Their Own Supply
“A jury in the District of Columbia today returned guilty verdicts on multiple felonies against five members of the Proud Boys, finding four of the defendants guilty of seditious conspiracy for their actions before and during the breach of the U.S. Capitol on Jan. 6, 2021,” the Department of Justice trumpeted last week. “According to the evidence at trial, in the months leading up to Jan. 6, the defendants plotted to oppose by force the lawful transfer of presidential power, and to prevent the Members of Congress, and the federal law enforcement officers who protect them, from discharging their duties.”
“At my Senate confirmation hearing just over a month after January 6th, I promised that the Justice Department would do everything in its power to hold accountable those responsible for the heinous attack that sought to disrupt a cornerstone of our democracy: the peaceful transfer of power to a newly elected government,” huffed Attorney General Merrick Garland, a man who gives every impression that he tremendously enjoys the smell of his own emissions. “Today’s verdict is another example of our steadfast commitment to keeping those promises.”
And so, we’re told, the republic is safe from those who would rise against it in insurrection. But before we consign former Proud Boys leader Enrique Tarrio and codefendants Ethan Nordean, Joseph Biggs, and Zachary Rehl to the history books alongside Mosby and Quantrill, Confederate guerrillas of the sort who inspired the seditious conspiracy statute to begin with, let’s consider an important obstacle: There’s sparse evidence of a meaningful conspiracy “to overthrow, put down, or to destroy by force the Government of the United States” as required by law.
Shouldn’t a Conspiracy Be Better Organized?
“The FBI has found scant evidence that the Jan. 6 attack on the U.S. Capitol was the result of an organized plot to overturn the presidential election result,” Reuters noted in August 2021. “‘Ninety to ninety-five percent of these are one-off cases,’ said a former senior law enforcement official with knowledge of the investigation. ‘Then you have five percent, maybe, of these militia groups that were more closely organized. But the
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