Conspiracies are Real

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“If two or more persons . . . conspire to prevent, by force, intimidation, or threat, any [federal officer] from . . . discharging any duties [of office], or to induce by like means any officer of the United States to leave the place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office . . . or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties, each of such persons shall be fined under this title or imprisoned not more than six years, or both.” — 18 U.S.C. § 372.

No, this essay is not about made-up conspiracies of left-wing pedophiles or the so-called “Deep State.” It’s about what actually happened at the US Capitol on January 6.

There and then, a conspiracy of thousands did “prevent, by force, intimidation [and] threat” the Capitol Police from discharging their duties of protecting the Capitol and our legislators, and “injure” them in their “person or property.” In fact, the mob killed one officer, so discouraged another that he committed suicide, and trashed the place. This is what a real conspiracy looks like.

How does the law define “conspiracy”? There are at most three elements:

[1] “[a]n agreement between two or more people to commit an illegal act, [and 2] an intent to achieve the agreement's goal. Most U.S. jurisdictions also require [3] an overt act toward furthering the agreement. An overt act is a statutory requirement, not a constitutional one.”

The agreement, of course, need not be written. Criminals don’t write “declarations of conspiracy,” like our Declaration of Independence, with “whereas” clauses and effective ones in erudite language and logical order. The “agreement” behind a conspiracy is always a matter of inference from circumstantial evidence. It’s for juries to see and find. And, yes, the Capitol Police are federal officers.

In this case, there is circumstantial evidence in abundance. Many conspirators left a “paper trail” on the Internet. Many met and planned, with Trump’s goading and separately. We must subpoena their rants on right wing “social media” and bulletin boards. We must make sure that Facebook, Twitter and the rest, in striving (rightly!) to stop the spread of violence, don’t throw out the evidence. Every call to violence, insurrection and mayhem must be preserved for trial.

Can you imagine any more consequential conspiracy than one that kept our Members of Congress caged up like undocumented alien kids at the border, hiding on the floors of their Chambers or under their desks? Can you imagine any illicit goal more consequential than stopping the operation of Congress?

So why don’t we arrest everyone we can identify at the January 6 insurrection, put all in the slammer pending trial, charge them with conspiracy under § 382, and seek the maximum penalty, six years in federal prison? Why am I reading about minor charges like trespassing or damaging property?

There are three easy answers to these questions. First, these conspirators are white. Second, they all support Trump. Or at least they have taken his diselection as a reason for their insurrection. Third, they are presumed to vote Republican and to have the sympathy of many more who do.

I can’t help but wonder what our fine legislators were thinking while they cowered, as advised by police, on the floor or under their desks. At least a few must have been thinking “This has gone too far.” Just as evidently, quite a few Republicans were thinking, “How can I get out of this with my reputation not too badly damaged, so I can get right back to pandering for extremist votes? Maybe I can become the next Trump.”

Courage combined with stupidity, or cowardice? You decide. But it has to be one or the other.

Did no one have the imagination to wonder what might have happened if the rebels had had the same automatic weapons that similar loonies paraded at Michigan’s Capital in April? How long could the four plainclothes protectors–who apparently killed a female insurrectionist while shooting blindly through broken glass—have held them off?

You know partisanship has reached the level of insanity when people won’t even protect themselves, let alone the institutions they’re sworn to uphold. But that’s exactly what happened last Wednesday.

Sadly, it’s been happening for a long, long time. Congress has all but forfeited its constitutional power to declare war. The House all but gave up its power of the purse in failing to censure or impeach Trump for diverting military money, without legislative authorization, to his useless Wall. And Congress, while keeping an actual jail for contemnors, punted to the courts to enforce its duly issued subpoenas to the members of the Executive Branch.

How spineless must you be not to protect the institution you serve, its constitutional power, and your own invertebrate body prone in front of lawless rebels? How can any of our legislatives call themselves “conservative” when they won’t even “conserve” their own prerogatives and power?

We ought to see the mob on trial, before a jury from the District, for conspiracy. The rioters ought to end up serving six-year terms, by the hundreds, if not the thousands.

This is why I wanted to see Eric Holder return as Attorney General. Although bigger and more imposing physically than Merrick Garland, he radiates the same sort of cherubic innocence. But in Ferguson Holder collected facts so thoroughly and damningly that no one could misunderstand what had been going on there.

Maybe Garland can do the same. If not, he can hire subordinates who can.

But this is the DOJ’s first order of business: to preserve Congress and its power as our Founders intended. That means putting enough of the January 6 goons behind bars for long enough so that no one will try this kind of stunt again for a long, long time. We must do that soon, lest goons bearing arms decide they have a free pass to take over our government, and, as some of them chanted, “Hang Mike Pence.”

Trump tried to win voters by claiming to support “law and order.” He proved his zeal by tear-gassing peaceful protestors on Lafayette Square. Why not start the Biden Administration by making sure that “law and order” at least prevail in our nation’s capital, and in our fifty states’ capitals as well, at least on Inauguration Day? A democratic government that cannot protect itself is no government at all.

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