McCarthy calls seditious conspiracy charges all but impossible to prove

Seditious Conspiracy Is the Wrong Charge in the Capitol-Riot Prosecutions

Two elements are indispensable to the crime of seditious conspiracy. First, there must be an agreement to use force, as opposed to protesting peacefully — even if rambunctiously. Second is the concept of levying war against the United States or opposing the lawful authority of the United States. Now that the Justice Department has been goaded into charging members of the Oath Keepers with seditious conspiracy for their participation in the Capitol riot, prosecutors may find that these elements pose insuperable challenges to their case.

bullied into bringing charges he cannot make

This is the wrong case for invoking seditious conspiracy. For political reasons, Democrats and Trump opponents want to brand January 6 as sedition, since sedition is the closest thing to insurrection. But it is not good law enforcement to infuse a prosecution with complications that needlessly risk acquittal, especially when more fitting charges would provide for the lengthy sentences that the most culpable rioters richly deserve.

I have found that McCarthey doesn't always provide the opinion that makes me feel all warm and fuzzy, but the man has a serious track record of being correct at the end of the day. If Andrew McCarthy says someone is likely to be convicted, you can bet the mortgage that someone is going to jail. If McCarthy says that a legal challenge is going to fail, then you can almost take it to the bank that the the plaintiffs will walk away disappointed.

So when McCarthy states that prosecutors are facing insuperable challenges (insuperable defined as impossible to overcome) it seems a good bet to say he will eventually be proven right. 

More to the point, McCarthy is the last prosecutor to bring successful sedition charges in court. But these were foreign born Jihadists who could easily be proven to have conspired and planned to take down the U.S. Government.

By contrast, the paradigmatic seditious-conspiracy case is the case I was privileged to prosecute. The accused were jihadists, mostly U.S.-based foreign nationals but also some American citizens. There was no doubt that they were at war with the United States; they hated the United States, wanted to destroy our constitutional system, wanted to mass-murder Americans, and could not have said so more clearly. Similarly, there was no doubt that the defendants planned and carried out attacks on civilian infrastructure (e.g., the 1993 bombing of the World Trade Center) and government facilities (e.g., schemes to bomb the FBI’s Manhattan headquarters and American military installations) because they believed the government was using its lawful authority in a manner that, in their anti-American animus, they perceived as hostile to their interests and desired policies. And note: That they were wrong was beside the point; what mattered was what they believed, why they acted.

So here is the difficulty for Garland, at least from what McCarthy seems to be arguing. 

First the state has to prove that there was an actual organized plan to use force or wage war on Jan 6th. This is a difficult thing to show for a variety of reasons, but mainly due to the fact that there was not any actual real force used against the Senators who would be counting the votes or any actual war waged against any Federal troops. What we saw was a riot that was no more violent than about 50 different riots we have seen over the past two-three years. Moreover, violence between citizens and local police is not legally considered an act of war against the Federal Government. 

Secondly, and ironically, the State would have to prove that the oath keeper being charged believed that Joe Biden was the legally elected President and that they believed that the transfer of power was perfectly legal. If it can be shown that the charged Oath keepers believed President Trump when he told them that the election was stolen and that Biden's win was illegitimate, then the case has no merit. McCarthy points out that the indictment includes fictional description of the events at hand:

To read the indictment is thus a vertiginous experience. For nearly 30 pages, prosecutors describe a state of affairs in which, during the two months following the November 2020 election, Biden’s victory was neither denied nor deniable; therefore, the narrative insists, acknowledgement of Biden’s triumph was, beyond cavil, what the lawful transfer of power required.

Rhodes did not urge that the lawful transfer of power be stopped. Prosecutors offer no reason to believe that Rhodes intended to obstruct the lawful transfer of power. To be accurate, the indictment would have to say Rhodes urged Trump to stop what Rhodes believed was the unlawful transfer of power. And while Rhodes was mistaken in this belief, he did not formulate it out of thin air. He believed the transfer of power to Biden would be unlawful because the incumbent president — the only public official vested with constitutional authority to uphold the laws — insisted it would be unlawful. Consequently, Rhode saw January 6 as a “hard constitutional deadline” because he saw himself as upholding the Constitution — preserving the government, not overthrowing it.

 In other words, there can be no acknowledgement of Trump's claim that the election results were fraudulent and must be proven beyond all reasonable doubt that the Oath Keepers believed Biden was the legitimate winner and that they completely rejected Trump's claims of election fraud. I mean, there is not even any narrative for this scenario, especially from those who want to complain that it was a sedition, but also done because they "believed" the "big lie" (which implicates Trump).  

But that is the narrative that the indictment suggests. That the Oath keepers rejected Trump's position, but decided to wage war against the Senators counting the votes in spite of their personal belief that Biden was duly elected and that the transfer of power was perfectly legal. The way the indictment is written, Trump cannot possibly be charged as a conspirator or instigator, because prosecutors will have to prove that the Oath keepers rejected his claims in order to prove their case against the Oath keepers. 

How ironic is that? Turns out that if they believed the "big lie" that they cannot actually be charged with sedition. But by proving that they did not believe it, excludes the possibility that Trump could be charged in the plot.

Go figure?