Reasonable and unreasonable doubt in ‘seditious conspiracy’

See updates through February 7, 2022, at end of post.


I do believe we are at an extraordinarily dangerous moment in U.S. history in which we may be turning, by one means or another,[1] from a constitutional oligarchy, which is quite bad enough and which I deplore,[2] into a full-on right-wing dictatorship foundationally imposing an ideology, which I label Trumpism, combining elements of authoritarian populism, paleoconservatism, and social conservatism—tendencies of conservatism I identified in my dissertation[3] and which Donald Trump united for all intents and purposes.[4]

In a bipartisan system where it is certain that either Republicans or Democrats will be in power, it leads me to question my determination never again to vote for Democrats, but then I also see how utterly ineffective the Democrats are in reversing what can no longer be viewed merely as a conservative tide. It is blindingly obvious to me not only that the Democrats are not the answer,[5] but rather, as we saw with the 2016 election that brought Trump to power in the first place, a major cause of the problem.[6]

With the legislative and executive branches hopelessly compromised, that leaves the judicial branch, which, putting it mildly, I also hold in profoundly low regard.[7] You might be guessing that I don’t see how this ends well.

You might also have read something along the lines of how legal “walls are closing in” on Trump. He has had, it is reasonably alleged, a very bad week, as investigations of his finances and his participation in the January 6, 2021, coup attempt seem to be starting to gain significant traction.[8]

It is at this point I remember sitting in a mechanic’s waiting area in Petaluma, California. I don’t remember quite how long ago this was, but since I’ve been in Pittsburgh for nearly three years now, we can reasonably say it precedes April 2019. Rachel Maddow was playing on the television and I was struck by their breathless anticipation of—if faint memory serves—how the Robert Mueller investigation would do Trump in. They could taste the vindication, they were so sure, so certain.

With the benefit of hindsight, we can safely say that neither Mueller nor two impeachment trials did Trump in. But it is certainly possible to be similarly carried away by the events of the last week:

“He’s Teflon Don, he said he could shoot somebody on Fifth Avenue and survive it, his supporters are going to support him no matter what, but I’m starting to think more and more that the walls are closing in on this guy,” said Kimberly Wehle, a respected legal analyst and professor of law at the University of Baltimore.

“The most immediate thing is the grand jury in Georgia because there’s audio of him trying to get [secretary of state] Brad Raffensperger to ‘find’ votes. Under Georgia election laws as I read them that is potentially a crime.

“The looming question is whether Trump will be indicted along with 11 others so far for seditious conspiracy [over the 6 January Capitol attack]. To me that’s the biggest turn of events … the justice department believes they have evidence beyond a reasonable doubt of an agreement, a meeting of minds to overturn a legitimate election.

“And that there are a lot of high-level people that are looped into it, including potentially Donald Trump himself, and of course he’s not president, so he’s not immune from prosecution any more.”[9]

Ah, yes. “Seditious conspiracy.” This charge, already laid against the leader of the Oath Keepers, Stewart Rhodes, and several alleged co-conspirators, could put them in a federal penitentiary for twenty years.[10] Are ya breathless yet?

It would be good—very good—for you to read Jeannie Suk Gersen’s article on the charge against Rhodes and his alleged co-conspirators. Her logic is devastating, I think, fatal for the government case against Rhodes, fatal for any similar case against Trump:

The question of [Stewart] Rhodes’s purpose, though, is complicated by the likelihood that he and his co-conspirators believed that the election was stolen, and that Congress was acting unconstitutionally to install an illegitimate usurper as the President. In other words, the defendants’ subjective purpose may have been to fight against the subversion of law, not to prevent its execution. Thus, “the big lie”—and the troubling fact that much of the country appears to believe it is the truth—is at the core of the seditious-conspiracy charge.[11]

There are actually two layers to this in Gersen’s argument. First, she claims, the government must prove that Rhodes understood the 2020 election result against Trump was legitimate and was seeking to overturn it regardless. Second, she notes, a jury, which may itself include members who harbor doubts about that election, must accept that proof.[12]

I have had my doubts as to whether Trump’s followers sincerely believe the conspiracy theories that they espouse so insistently, so vociferously, that I have been tempted to ask them whether they are seeking to convince me or themselves.[13] But I certainly cannot prove beyond a reasonable doubt that Trump, Rhodes, or any of their followers do not believe the election was “stolen.”

The question of belief would properly require a journey we do not reliably know how to undertake into the mind of another being. Even if we accept less certain methods, we would need to have good reason to believe that for all their venom, Trump and his followers knew they were wrong about the election. Which is why I find Gersen’s argument devastating:

The indictment [against Stewart Rhodes] starts with a recitation of federal law on the process for the transfer of Presidential power, namely the Twelfth and Twentieth Amendments to the Constitution and the Electoral Count Act. It alleges that Rhodes planned with his co-defendants to oppose that lawful process by force. But, in order to convict the defendants of seditious conspiracy, the government will have to prove that they planned their storming of the Capitol with the purpose of opposing the lawful transfer of Presidential power.[14]

Gersen’s argument hinges on “the purpose of opposing the lawful transfer.” If their purpose, rather, can reasonably be construed as being to oppose what they understand to be an unlawful transfer, then the government’s case fails.[15]

I simply don’t see how you prove beyond a reasonable doubt that Rhodes, Trump, or anyone else does not believe the election was stolen. I don’t think that is a claim that is possible to prove. And I do think, given a reported widespread Republican belief that the election was stolen—it seems that Republican politicians must now embrace that belief as orthodoxy or face electoral annihilation[16]—that there is considerable reason to doubt such a claim, even to find it unreasonable.

I am not a lawyer. I hope I am wrong. And I understand there are lesser charges that may be easier to prove.[17] But the government’s case will rely on a jury’s unanimous verdict, which will itself rely upon a juror selection process that I expect will rely on potential jurors being candid about their feelings about the election where many of them may well believe that even violence would be justified to overturn that election or support a civil war.[18] I think people, especially people who resent ‘elites,’[19] who are willing to resort to violence, will certainly be willing to deceive the courtroom ‘elite.’ I will be astonished if this ends well.


Update, January 28, 2022: Apparently, some experts think the seditious conspiracy charges against Oath Keepers are relatively strong. What I see in their arguments, however, is conspiracy.[20] This does not touch Jeannie Gersen’s argument about motivation, that the Oath Keepers may in fact have sought to uphold the law as they perceived it.[21]


Update, February 7, 2022: There’s this controversy about Donald Trump’s handling of records—he apparently shreds them routinely as a form of catharsis[22]—that some on Twitter have thought should be prosecuted:

While the law requires that presidents preserve records related to an administration’s activities, the Archives has very limited enforcement capabilities. The Presidential Records Act operates on the basis of a “gentlemen’s agreement,” as one Archives official phrased it.

Stephen Gillers, a New York University law professor and constitutional scholar, along with other legal experts point to the potential for enforcement that could take place via federal records laws. But several said they thought such action would be unlikely.

“There is a high bar for bringing such cases,” said Charles Tiefer, former counsel to the House of Representatives who teaches at the University of Baltimore School of Law.[23]

While it appears unlikely that Trump will be prosecuted for mishandling records, including those related to the coup attempt,[24] other investigations proceed and Trump is demonstrating criminal intent:[25]

Dennis Aftergut, a former federal prosecutor who is of counsel to Lawyers Defending American Democracy, told the Guardian that Trump “may have shot himself in the foot” with the comments. “Criminal intent can be hard to prove, but when a potential defendant says something easily seen as intimidating or threatening to those investigating the case it becomes easier,” Aftergut said.[26]

This would seem to somewhat relieve my concerns[27] about proving intent in a potential prosecution of Trump for seditious conspiracy based on Jeannie Suk Gersen’s analysis.[28] Time will tell and my experience with the court system is that it often seems fickle.

  1. [1]David Benfell, “How Margaret Atwood’s The Handmaid’s Tale moves from fiction to fact,” Not Housebroken, December 7, 2021, https://disunitedstates.org/2021/12/01/how-margaret-atwoods-the-handmaids-tale-moves-from-fiction-to-fact/; David Benfell, “How much does Donald Trump’s profanity against Binyamin Netanyahu matter?” Not Housebroken, December 16, 2021, https://disunitedstates.org/2021/12/16/how-much-does-donald-trumps-profanity-against-binyamin-netanyahu-matter/; David Benfell, “Trumpism, Donald Trump, the January 6 coup attempt, and a smoking gun that may never be found,” Not Housebroken, December 19, 2021, https://disunitedstates.org/2021/12/14/trumpism-donald-trump-the-january-6-coup-attempt-and-a-smoking-gun-that-may-never-be-found/; David Benfell, “A hot U.S. civil war turned cold, now lukewarm, may turn hot again,” Not Housebroken, January 5, 2022, https://disunitedstates.org/2021/12/19/a-hot-u-s-civil-war-turned-cold-now-lukewarm-may-turn-hot-again/; David Benfell, “The January 6 counterfactual,” Not Housebroken, January 6, 2022, https://disunitedstates.org/2022/01/06/the-january-6-counterfactual/; David Benfell, “The danger that still remains,” Not Housebroken, January 22, 2022, https://disunitedstates.org/2021/11/24/the-danger-that-still-remains/
  2. [2]David Benfell, “A constitutional oligarchy: Deconstructing Federalist No. 10,” Not Housebroken, July 3, 2021, https://disunitedstates.org/2020/04/22/a-constitutional-oligarchy-deconstructing-federalist-no-10/
  3. [3]David Benfell, “Conservative Views on Undocumented Migration” (doctoral dissertation, Saybrook, 2016). ProQuest (1765416126).
  4. [4]David Benfell, “The seven tendencies of conservatism,” Irregular Bullshit, n.d., https://disunitedstates.com/the-seven-tendencies-of-conservatism/; David Benfell, “A hot U.S. civil war turned cold, now lukewarm, may turn hot again,” Not Housebroken, December 19, 2021, https://disunitedstates.org/2021/12/19/a-hot-u-s-civil-war-turned-cold-now-lukewarm-may-turn-hot-again/
  5. [5]David Benfell, “Democrats and contradiction,” Not Housebroken, January 20, 2022, https://disunitedstates.org/2021/11/18/democrats-and-contradiction/
  6. [6]David Benfell, “Democrats must own Donald Trump,” Not Housebroken, November 14, 2016, https://disunitedstates.org/2016/11/13/democrats-must-own-donald-trump/
  7. [7]David Benfell, “Juries and injustice: The fools call me in again,” Not Housebroken, April 28, 2015, https://disunitedstates.org/2015/04/27/juries-and-injustice-the-fools-call-me-in-again/
  8. [8]George T. Conway, III, “The Supreme Court’s order against Donald Trump is even worse for him than it appears,” Washington Post, January 21, 2022, https://www.washingtonpost.com/opinions/2022/01/21/courts-hand-donald-trump-loss-after-loss-after-loss/; Richard Luscombe, “‘The walls are closing in’: Trump reels from week of political setbacks,” Guardian, January 23, 2022, https://www.theguardian.com/us-news/2022/jan/22/the-walls-are-closing-in-trump-reels-from-week-of-political-setbacks; Ed Pilkington, “‘House of Trump is crumbling’: why ex-president’s legal net is tightening,” Guardian, January 22, 2022, https://www.theguardian.com/us-news/2022/jan/22/donald-trump-legal-perils; Corinne Ramey, “New York Attorney General Says Evidence Suggests Trump, Company Falsely Valued Assets,” Wall Street Journal, January 19, 2022, https://www.wsj.com/articles/new-york-attorney-general-evidence-suggests-trump-and-company-falsely-valued-assets-11642573790; David G. Savage, “Supreme Court rejects Trump’s plea to shield White House records from House inquiry,” Los Angeles Times, January 19, 2022, https://www.latimes.com/politics/story/2022-01-19/supreme-court-turns-down-trumps-plea-to-shield-his-white-house-records-from-house-probe; Felicia Sonmez, Josh Dawsey, and Jonathan O’Connell, “Supreme Court, investigators force Trump and his children on the defensive on multiple fronts,” Washington Post, January 21, 2022, https://www.washingtonpost.com/politics/2022/01/21/supreme-court-investigators-force-trump-his-children-defensive-multiple-fronts/; Heather Vogell, “New Legal Filing Reveals Startling Details of Possible Fraud by Trump Organization,” ProPublica, January 21, 2022, https://www.propublica.org/article/new-legal-filing-reveals-startling-details-of-possible-fraud-by-trump-organization; John Wagner, “Georgia prosecutor requests special grand jury in probe of Trump’s efforts to overturn state’s election results,” Washington Post, January 20, 2022, https://www.washingtonpost.com/politics/2022/01/20/georgia-da-seeks-special-grand-jury-trump/
  9. [9]Richard Luscombe, “‘The walls are closing in’: Trump reels from week of political setbacks,” Guardian, January 23, 2022, https://www.theguardian.com/us-news/2022/jan/22/the-walls-are-closing-in-trump-reels-from-week-of-political-setbacks
  10. [10]Jeannie Suk Gersen, “The Case Against the Oath Keepers,” New Yorker, January 21, 2022, https://www.newyorker.com/news/daily-comment/the-case-against-the-oath-keepers
  11. [11]Jeannie Suk Gersen, “The Case Against the Oath Keepers,” New Yorker, January 21, 2022, https://www.newyorker.com/news/daily-comment/the-case-against-the-oath-keepers
  12. [12]Jeannie Suk Gersen, “The Case Against the Oath Keepers,” New Yorker, January 21, 2022, https://www.newyorker.com/news/daily-comment/the-case-against-the-oath-keepers
  13. [13]David Benfell, “Doubting the ‘Fox News bubble,’” Not Housebroken, April 28, 2021, https://disunitedstates.org/2020/09/07/doubting-the-fox-news-bubble/
  14. [14]Jeannie Suk Gersen, “The Case Against the Oath Keepers,” New Yorker, January 21, 2022, https://www.newyorker.com/news/daily-comment/the-case-against-the-oath-keepers
  15. [15]Jeannie Suk Gersen, “The Case Against the Oath Keepers,” New Yorker, January 21, 2022, https://www.newyorker.com/news/daily-comment/the-case-against-the-oath-keepers
  16. [16]David Montgomery, “What Wyoming Really Thinks of Liz Cheney,” Washington Post, October 7, 2021, https://www.washingtonpost.com/magazine/2021/10/07/wyoming-voters-liz-cheney/; Ashley Parker, Amy Gardner and Josh Dawsey, “How Republicans became the party of Trump’s election lie after Jan. 6,” Washington Post, January 5, 2022, https://www.washingtonpost.com/politics/republicans-jan-6-election-lie/2022/01/05/82f4cad4-6cb6-11ec-974b-d1c6de8b26b0_story.html
  17. [17]Jeannie Suk Gersen, “The Case Against the Oath Keepers,” New Yorker, January 21, 2022, https://www.newyorker.com/news/daily-comment/the-case-against-the-oath-keepers
  18. [18]Jacob Bacharach, “The Next Coup Attempt Will Be More Dangerous,” review of The Steal: The Attempt to Overturn the 2020 Election and the People Who Stopped It by Mark Bowden and Matthew Teague, New Republic, January 4, 2022, https://newrepublic.com/article/164914/next-coup-attempt-will-dangerous-teague-bowden-book-review; Rachel Bade and Zack Stanton, “4 startling polls you should read about Jan. 6,” Politico, January 2, 2022, https://www.politico.com/newsletters/playbook/2022/01/02/4-startling-polls-you-should-read-about-jan-6-495559; Philip Bump, “What we’re talking about when we talk about civil war,” Washington Post, January 4, 2022, https://www.washingtonpost.com/politics/2022/01/04/what-were-talking-about-when-we-talk-about-civil-war/; Bruce Hoffman, “A Year After January 6, Is Accelerationism the New Terrorist Threat?” Council on Foreign Relations, January 5, 2022, https://www.cfr.org/in-brief/year-after-january-6-accelerationism-new-terrorist-threat; Thomas Homer-Dixon, “The American polity is cracked, and might collapse. Canada must prepare,” Globe and Mail, January 2, 2022, https://www.theglobeandmail.com/opinion/article-the-american-polity-is-cracked-and-might-collapse-canada-must-prepare/; Michael Lind, “America’s Asymmetric Civil War,” Tablet, January 5, 2022, https://www.tabletmag.com/sections/news/articles/americas-asymmetric-civil-war; Stephen Marche, “The next US civil war is already here – we just refuse to see it,” Guardian, January 4, 2022, https://www.theguardian.com/world/2022/jan/04/next-us-civil-war-already-here-we-refuse-to-see-it; Tina Nguyen, “My Country, Right or Far Right?: January 6th and the World It Created,&rdq; Puck News, January 6, 2022, https://puck.news/january-6th-and-the-world-it-created/
  19. [19]David Benfell, “Conservative Views on Undocumented Migration” (doctoral dissertation, Saybrook, 2016). ProQuest (1765416126).
  20. [20]Nick Robins-Early, “Seditious conspiracy is rarely proven. The Oath Keepers trial is a litmus test,” Guardian, January 28, 2022, https://www.theguardian.com/us-news/2022/jan/28/seditious-conspiracy-charges-trial-oath-keepers-us-court
  21. [21]Jeannie Suk Gersen, “The Case Against the Oath Keepers,” New Yorker, January 21, 2022, https://www.newyorker.com/news/daily-comment/the-case-against-the-oath-keepers
  22. [22]Jacqueline Alemany et al., “National Archives had to retrieve Trump White House records from Mar-a-Lago,” Washington Post, February 7, 2022, https://www.washingtonpost.com/politics/2022/02/07/trump-records-mar-a-lago/; Ashley Parker et al., “‘He never stopped ripping things up’: Inside Trump’s relentless document destruction habits,” Washington Post, February 5, 2022, https://www.washingtonpost.com/politics/2022/02/05/trump-ripping-documents/
  23. [23]Jacqueline Alemany et al., “National Archives had to retrieve Trump White House records from Mar-a-Lago,” Washington Post, February 7, 2022, https://www.washingtonpost.com/politics/2022/02/07/trump-records-mar-a-lago/
  24. [24]Jacqueline Alemany et al., “National Archives had to retrieve Trump White House records from Mar-a-Lago,” Washington Post, February 7, 2022, https://www.washingtonpost.com/politics/2022/02/07/trump-records-mar-a-lago/; Ashley Parker et al., “‘He never stopped ripping things up’: Inside Trump’s relentless document destruction habits,” Washington Post, February 5, 2022, https://www.washingtonpost.com/politics/2022/02/05/trump-ripping-documents/
  25. [25]Monique Beals, “Georgia prosecutors ask FBI for security help after Trump protest remarks: report,” Hill, January 31, 2022, https://thehill.com/policy/national-security/592044-georgia-prosecutors-ask-fbi-for-security-help-one-day-after-trump; George T. Conway, III, “The Supreme Court’s order against Donald Trump is even worse for him than it appears,” Washington Post, January 21, 2022, https://www.washingtonpost.com/opinions/2022/01/21/courts-hand-donald-trump-loss-after-loss-after-loss/; Richard Luscombe, “‘The walls are closing in’: Trump reels from week of political setbacks,” Guardian, January 23, 2022, https://www.theguardian.com/us-news/2022/jan/22/the-walls-are-closing-in-trump-reels-from-week-of-political-setbacks; Olafimihan Oshin, “Trump calls for protests if prosecutors ‘do anything illegal’ in targeting him,” Hill, January 30, 2022, https://thehill.com/homenews/administration/592009-trump-calls-for-biggest-protest-weve-ever-had-if-prosecutors-do; Ed Pilkington, “‘House of Trump is crumbling’: why ex-president’s legal net is tightening,” Guardian, January 22, 2022, https://www.theguardian.com/us-news/2022/jan/22/donald-trump-legal-perils; Corinne Ramey, “New York Attorney General Says Evidence Suggests Trump, Company Falsely Valued Assets,” Wall Street Journal, January 19, 2022, https://www.wsj.com/articles/new-york-attorney-general-evidence-suggests-trump-and-company-falsely-valued-assets-11642573790; Jennifer Rubin, “A single district attorney in Georgia has the best case against Trump,” Washington Post, January 11, 2022, https://www.washingtonpost.com/opinions/2022/01/11/single-district-attorney-georgia-has-best-case-against-trump/; David G. Savage, “Supreme Court rejects Trump’s plea to shield White House records from House inquiry,” Los Angeles Times, January 19, 2022, https://www.latimes.com/politics/story/2022-01-19/supreme-court-turns-down-trumps-plea-to-shield-his-white-house-records-from-house-probe; Felicia Sonmez, Josh Dawsey, and Jonathan O’Connell, “Supreme Court, investigators force Trump and his children on the defensive on multiple fronts,” Washington Post, January 21, 2022, https://www.washingtonpost.com/politics/2022/01/21/supreme-court-investigators-force-trump-his-children-defensive-multiple-fronts/; Peter Stone, “Trump’s incendiary Texas speech may have deepened his legal troubles, experts say,” Guardian February 7, 2022, https://www.theguardian.com/us-news/2022/feb/07/donald-trump-incendiary-speech-texas-legal-troubles-experts; Heather Vogell, “New Legal Filing Reveals Startling Details of Possible Fraud by Trump Organization,” ProPublica, January 21, 2022, https://www.propublica.org/article/new-legal-filing-reveals-startling-details-of-possible-fraud-by-trump-organization; John Wagner, “Georgia prosecutor requests special grand jury in probe of Trump’s efforts to overturn state’s election results,” Washington Post, January 20, 2022, https://www.washingtonpost.com/politics/2022/01/20/georgia-da-seeks-special-grand-jury-trump/; Amy B. Wang and John Wagner, “Georgia prosecutor granted special grand jury in probe of Trump’s efforts to overturn state’s election results,” Washington Post, January 24, 2022, https://www.washingtonpost.com/politics/2022/01/24/georgia-prosecutor-granted-special-grand-jury-probe-trumps-efforts-overturn-states-election-results/
  26. [26]Peter Stone, “Trump’s incendiary Texas speech may have deepened his legal troubles, experts say,” Guardian February 7, 2022, https://www.theguardian.com/us-news/2022/feb/07/donald-trump-incendiary-speech-texas-legal-troubles-experts
  27. [27]David Benfell, “Reasonable and unreasonable doubt in ‘seditious conspiracy,’” Not Housebroken, January 28, 2022, https://disunitedstates.org/2022/01/23/reasonable-and-unreasonable-doubt-in-seditious-conspiracy/
  28. [28]Jeannie Suk Gersen, “The Case Against the Oath Keepers,” New Yorker, January 21, 2022, https://www.newyorker.com/news/daily-comment/the-case-against-the-oath-keepers

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