When ‘support and defend’ The Constitution Becomes Sedition
Last week, a Far Left Democrat-dominated Washington, DC jury convicted a group of Oath
Keepers of the crime of “seditious conspiracy” for their participation in the January 6, 2021 protest at the U.S. Capitol. Sedition is a crime with a very checkered history in American law.
The Cornell Law School Legal Information Institute gives a good summary of the history of sedition laws here and says this about contemporary sedition law in the United States:
While the U.S. still criminalizes sedition in 18 U.S.C. § 2384, the First Amendment’s free speech protections limit the extent to which states and the federal government can criminalize sedition. In 1969, a U.S. Supreme Court case, Brandenburg v. Ohio, created a test requiring that speech must directly or imminently likely produce violence. Most modern seditious conspiracy convictions under § 2384 involve terrorist plots. For example, in U.S. v. Rahman, the Second Circuit upheld the convictions of the Muslim clerics under § 2384 who plotted “to bomb office building, tunnels, and bridges in New York City..."
To commit the crime of seditious conspiracy 18 U.S. Code § 2384 requires the accused to:
“...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.”
Everyone on this list except Watkins, Harrelson, and Caldwell was convicted by the DC jury of seditious conspiracy. The Biden Department of Justice has requested sentences more in line with treason than seditious conspiracy, with sentences ranging from Stewart Rhodes, 25 years in prison; Kelly Meggs, 21 years; Jessica Watkins, 18 years; Roberto Minuta, 17 years; Edward Vallejo, 17 years; Kenneth Harrelson, 15 years; Thomas Caldwell, 14 years; Joseph Hackett, 12 years; to David Moerschel, 10 years.
But did Rhodes, Meggs, Minuta, Vallejo, Hackett and Moerschel actually commit the crime of “seditious conspiracy”?
The oath of office for members of the American military and most public offices states that the oath taker swears to “support and defend” the Constitution of the United States, not a particular administration or public official.
If a given administration is illegitimate or took power through extra-constitutional means, then it obviously would not be sedition to oppose it because the government of the United States is not Donald Trump or Joe Biden, it is the Constitution.
Similarly, it should not be seditious to point out that a given administration had taken power illegitimately or through extra-constitutional means, and at a minimum, to exercise the rights guaranteed by the First Amendment in opposition to it.
To make such claims and to have the right to advocate them and offer proof and demand corrective action would seem to be the most fundamental political speech right there is.
Yet, it appears that Stewart Rhodes, Kelly Meggs, Jessica Watkins, Roberto Minuta, Edward Vallejo, Kenneth Harrelson, Thomas Caldwell, Joseph Hackett, and David Moerschel, are facing decades in prison for doing no more than that.
What’s more, given that the use of force is an essential element of the crime, not one was accused of bringing or using a weapon at the Capitol. Not one was convicted (or charged) with assaulting a police officer. As Julie Kelly tweeted, “These are lame f*cking conspiracy charges…”
And what exactly were Stewart Rhodes, Kelly Meggs, Jessica Watkins, Roberto Minuta, Edward Vallejo, Kenneth Harrelson, Thomas Caldwell, Joseph Hackett, and David Moerschel conspiring to do?
The best evidence is they were conspiring to “support and defend the Constitution of the United States against all enemies, foreign and domestic” and far from wishing to “overthrow, put down, or to destroy by force the Government of the United States” their “conspiracy,” such as it was, was to demand that Congress exercise its constitutional authority to determine the winner of the 2020 election.
Stewart Rhodes, Kelly Meggs, Jessica Watkins, Roberto Minuta, Edward Vallejo, Kenneth Harrelson, Thomas Caldwell, Joseph Hackett, and David Moerschel clearly were not conspiring to overthrow the government of the United States, because the government is the Constitution, not Joe Biden. If they were conspiring to do anything it was to “support and defend the Constitution of the United States,” and if they were guilty of anything it was being naïve enough to believe that the Washington, DC political establishment would accede to their demand to follow the plain language of the Constitution as written, rather than responding by doing anything – including warping the law – to preserve its power.
seditious conspiracy
January 6 riot
Oath Keepers
Proud Boys
Stewart Rhodes
Kelly Meggs
Jessica Watkins
Roberto Minuta
Edward Vallejo
Kenneth Harrelson
Thomas Caldwell
Joseph Hackett
David Moerschel
free speech
First Amendment