Saturday, January 15, 2022

The New And Improved Dunciad

So here's the text of 18 U.S. Code section 2384:

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.

There's a lot there, included the implicit need to show criminal intent.  Let's set the issue of intent aside, that's the prosecutor’s headache.  Look at the language: 

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, 

Aye, there's the rub:  "to oppose by force the authority of the United States" (i.e., assault and overrun the Capitol police, or just disrupt a session of Con), "prevent, hinder, or delay the execution of any law" (i.e., the joint session of Congress conducted under the Electoral Vote Count Act and the Constitution), "or by force to seize, take, or possess any property of the United States contrary to the authority thereof."  Granted, that last seems to apply to everyone who broke into the Capitol, but you can add it as an element of the crimes charged against the Oath Keepers because, why not?

And no, nothing in there requires intent to overthrow the government.  The intent required here is merely the criminal intent to violate the statute, i.e., to commit the acts outlined in the statute, all or several of them, by engaging in a conspiracy.  That ropes in a lot of people who can't raise the defense "But I wasn't there that day!"

Does this mean the case is a slam dunk?  No; it just means things got real interesting, as Laurence Tribe and David Aftergut wrote:

"As we have written elsewhere, the efforts by Republican politicians, lawyers and operatives to find corrupt but nonviolent ways to overturn the election results were 'Plan A.' Its failure required 'Plan B' — the Jan. 6 attack on the Capitol — as the fallback option to keep Trump in power," they wrote. "In recent days, multiple media outlets have added to the evidence of just such a Plan A by reporting on forged electoral slate certificates — almost identically worded and formatted — purporting to name Trump electors in seven states that he lost. The fraudulent documents were actually submitted to the National Archives in December 2020, but without the support of state governors or secretaries of state, they were ignored."

The fact those alternate slates were both illegitimate and ignored does not excuse them as potential criminal acts under the statute cited above.  That they didn't succeed in preventing, hindering, or delaying the execution of any U.S. law doesn't mean they didn't try; and trying is all it takes the break the threshold of seditious conspiracy.

Speaking of trying:

Lots of fraud (false statements intended to be relied on) in there. I especially like step 7.  It proves the truth of what my CrimLaw professor, himself a former criminal defense lawyer before teaching, drummed into us:  "They don't catch the smart ones."

This was a clown coup.  Bad, illegal, and lots of people need to face criminal charges (at least). But this was a true confederacy of dunces.  Someday somebody will write a new Dunciad about them.
Posted by at

No comments:

Post a Comment

Subscribe to: Post Comments (Atom)