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Government Overreach

Jurors Likely Deadlocked In Jan 6 Proud Boys Trial

The jury may be deadlocked and unable to return a verdict in the high profile January 6 trial against prominent Proud Boys

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According to a report by NBC News’ Ryan Reilly, the jury in the Proud Boys trial is now deadlocked and just asked the judge in the case to provide more specific instruction on the definition of “seditious conspiracy”.

This means the primary charge of the highest-profile January 6th case is now in doubt. The judge is expected to give instructions to the jury shortly on how to interpret the law and break the deadlock.

A failure to convict the Proud Boys on seditious conspiracy would be a major black eye for the Department of Justice, as this is just one of only two trials of the so-called “January 6 Insurrection” where anyone has actually been charged with insurrection.Of the more than one thousand others who have been accused by the DOJ, the vast majority have been nonviolent offenders guilty of trespassing or “unlawful parading.”

Many have been charged with felony Obstruction of an Official Proceeding, under the novel legal theory that the law – which was originally written to combat corporate fraud in federal court – criminalizes the inconveniencing Congress with nonviolent protest.

Almost all of those charged in January 6 cases, even first-time offenders not charged with violent crimes, have been convicted by D.C. juries in a matter of minutes and faced severe punishment. 92.15% of District of Columbia voters cast a ballot for Joe Biden in 2020.

The prosecution is especially tenuous in the case of Proud Boys leader Enrique Tarrio, who wasn’t even in Downtown D.C. on January 6. Tarrio, who has been accused by many on the Left of leading a white supremacist organization, is a black Afro-Cuban.

Crowd outside US Capitol on January 6 2021

Tyler Merbler / Flickr

While many Americans mistakenly believe that a betrayal of the federal government is treason, as it essentially was in English common law, the Framers of the Constitution worried that an overly-broad definition of treason would be abused as it often was under British rule. In the American legal context, treason is narrowly defined as waging war on the United States or giving “aid and comfort” to foreign enemies in a time of war.

In the United States, the equivalent of common law treason is seditious conspiracy. In layman’s terms, it is a crime for two or more people to plan to use violence to:

  1. Overthrow, put down, destroy or wage war against the U.S. government
  2. Oppose the authority of the U.S. government
  3. Prevent or delay the enforcement of any American law
  4. Steal federal property

The law was originally championed by pre-Civil-War slave states in response to abolitionist John Brown’s raid on the federal arsenal at Harper’s Ferry in 1859. The crime has only been charged a handful of times in its more than century-old history, with the vast majority of cases ending in acquittal.

The DOJ’s theory is that the Proud Boys conspired to obstruct the peaceful transition of power and oppose the authority of the federal government with violence. However, the difficulty with convicting the Proud Boys of seditious conspiracy is that the government has made no allegation that the Proud Boys actually had a plan to breach the Capitol, let alone use violence to change the outcome of the election.

They clearly planned to protest, were prepared to use violence against anyone who attacked other protestors and wanted to support the legal challenge to the election that many anticipated Vice President Mike Pence was going to mount in Congress. Still, the idea that being prepared to use violence for self-defense and being present at a protest of a presidential transition combines to equal violent revolution is a fairly tenuous argument to make.

Even the reliably far-left law blog Lawfare, pointed out that the argument is a massive stretch. Likewise, left-wing civil libertarian lawyer Jonathan Turley warned in late 2020 that the application of sedition statutes against rioters – in that context in regards to Black Lives Matter rioters – saying, “Such a use of sedition laws directly threatens free speech values and would return to dark periods of the suppression of dissent in our country.”

UPDATE:

After receiving a response from Judge Tim Kelly, the jury has finished deliberating for the day and will resume deliberations at 9AM ET tomorrow.

Lawfare Senior Editor Roger Parloff managed to get the exact text of the jury note:

Valiant News spoke with attorney Jonathon Moseley, who is not a part of this trial but represented defendant Zachary Rehl in the past, to decipher what the note means. In his interpretation, this points to the messy and convoluted way the trial has dealt with the concept of “conspiracy”. While most laymen would consider a conspiracy to mean an agreed-upon plan to commit an illegal act, such as robbing a bank, “the prosecution wants it all ways”. According to the prosecution in this case and the earlier Oath Keepers case, a conspiracy can exist in the absence of a plan and while different conspirators all have different goals, as long as they share the same “unlawful objective”.

“If the difference between an objective and a goal sounds confusing, it’s because it is,” Moseley said.

Taken broadly, the government is almost arguing that conspiracy can take place silently and subconsciously through winks and nods. For instance, the prosecution contends that Tarrio’s mention of “1776” in a group chat was a code phrase to fellow Proud Boys to signal that it is time for violent revolution.

Since all sides agree that there was never a Proud Boys plan to violently storm the Capitol, let alone overthrow the federal government, it’s a challenge for the jury to conclude that separate defendants with separate goals in separate places are guilty of the same crime. This would mean at least one juror may be considering acquittal for at least one of the Proud Boys, even if voting to convict others.

Judge Kelly’s response, according to Moseley, is “gobbledeygook” that did not clarify the situation at all.

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A.J. Cooke
Written By

A.J. Cooke is Cuban-American freelance journalist and ghostwriter based in Northern Virginia. He grew up in Japan, Malaysia and Portugal. His father, Don Cooke, was one of the 1979 Iran Hostages and his grandfather, the late Ambassador Diego Asencio, was held hostage by M-19 guerrillas in the 1980 Bogota Embassy Siege. A veteran political campaigner, fundraiser and ghostwriter, Cooke writes mostly political news with a focus on data science and legal analysis.

10 Comments

10 Comments

  1. Avatar

    Lloyd

    May 2, 2023 at 5:22 pm

    Looked to me the fbi did most of the instigating.They should be on trial

  2. Avatar

    JOHN THAYER

    May 2, 2023 at 5:51 pm

    The federal entity on the Potomac river is NOT the legitimate constitutional government of the former United States of America.

    • Avatar

      Kiamichi

      May 3, 2023 at 7:09 am

      Agree with you 100%. I would only change one thing.
      is not the legitimate Constitutional government of “these united States.”
      We are not the United States of America. The States created the federal government. Therefore it would be “these” united States.
      I know it seems trivial. But the difference between the and these is significant. One is singular “the” the other is plural “these” the these shows the States as independent united for common purposes while the singular “the” shows a single country united by a federal government telling the States what to do.

  3. Avatar

    Texconsin

    May 2, 2023 at 6:27 pm

    I’m definitely guilty of 2., but only VERBALLY up to now. But, don’t push me.

  4. Avatar

    Child of God

    May 2, 2023 at 10:58 pm

    Dont lie dont steal dont cheat dont disrespect our Flag dont have false god

  5. Avatar

    john wilson

    May 3, 2023 at 7:57 am

    Until the FBI or DOJ threatens them to vote with democrats…..then it will not be deadlocked

  6. Avatar

    Mordecai

    May 3, 2023 at 8:12 am

    Having lived through the last two years of Joe Burden even the most hardcore of sycophants knows that their wallet is to skinny to carry on much further in it and this alone will eventually bring about a spontaneous act of throwing off.
    Conspiracy is then the cause not the symptom and an act of those overthrown not of those throwing off.

  7. Avatar

    JulianusRex

    May 3, 2023 at 10:25 am

    If the crime of “seditious conspiracy” involves two or more people conspiring to prevent or delay the enforcement of any American law, then Biden and his Homeland Security Secretary appear guilty and should be impeached immediately.

  8. Avatar

    Rich Glass

    May 3, 2023 at 10:53 am

    Wondering what the FBI dirty tricks will be for those jurors who fail to convict?
    With what I have learned about federal law enforcement I would be afraid to be a juror who ‘stepped out of line’ and thwarted the agenda.

  9. Avatar

    THOMAS

    May 3, 2023 at 3:54 pm

    George Soros may have bought the DOJ, FBI, and the Jan 6th Kangaroo Court but he has not gotten the Jury yet !
    I say ” F J B and his entire administration !

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