by Julie Kelly
As I’ve explained in interviews and columns for over a year, DOJs looming indictment against Trump for January 6 poses tremendous legal jeopardy to the former president.
Why?
Because DOJs 2 1/2 year-record of success in prosecuting more than 1,000 individuals for even minimal participation in Jan 6 has established new legal precedents that apply to anyone involved in the Capitol protest. This will include Trump and his co-defendants.
January 6 Jurisprudence
It’s important to emphasize how DOJ–DC US Attorney’s office in particular–and both the DC district and appellate court have established an entirely separate set of laws for J6ers. Some defense lawyers call this “January 6 Jurisprudence,” a dig at the prosecutors and judges who’ve created this inescapable circle of hell for Americans who protested Joe Biden’s election that afternoon.
Quick example: Chief Judge Beryl Howell, public enemy #1 when it comes to the Bill of Rights, in early 2021 authored unique “factors” for judges to consider when deciding whether a Jan 6 defendant should be denied bail and remain in custody until trial.
This is unprecedented–imagine a federal judge creating no-bail rules that applied only to BLM or Antifa or pro-abortion protesters. But Howell’s court order allowed judges to treat an individual defendant as part of a “mob” to be punished accordingly.
This egregious sort of precedent is permitted because DOJ and judges routinely refer to the events of January 6 as “unprecedented.” Further, they collectively are OFFENDED that Americans traveled to THEIR FIEFDOM to support a president they loathe.
Howell condescendingly marveled in one hearing how the defendant “traveled all the way here from Texas,” as if he had no right to visit his nation’s capital city to express his political views.
Building Case Law to Wield Against Trump
Not only have judges essentially rewritten federal bail statutes to justify the indefinite incarceration of Trump supporters, those same judges–at the behest of Biden’s DOJ–have sanctioned the bastardization of other laws to criminalize political dissent.
And this spells big trouble for Trump.
The likeliest charge Smith will seek against Trump is obstruction of an official proceeding. More than 300 J6ers have been charged with this post-Enron law originally intended to address tampering with evidence/witnesses in an investigation. (1512(c)(2) is one of the criminal referrals made to DOJ by Jan 6 select committee)
DOJ has successfully redefined the law to punish trespassers–think Jacob Chansley, i.e., the QAnon shaman–and send them to jail. Prosecutors claim anyone who contributed to interrupting Congress that day committed obstruction, a felony punishable by up to 20 years in prison. (A mixed opinion by DC appellate court offered no clarity on the legitimacy of the offense against J6ers; one defendant is seeking cert at SCOTUS with more petitions to follow.)
Some J6ers have been convicted of obstruction even though they didn’t go inside the building. A DC jury convicted Proud Boys leader Enrique Tarrio of obstruction of an official proceeding AND HE WASN’T EVEN IN DC ON JANUARY 6.
Which leads to another likely charge facing Trump: seditious conspiracy. This Civil War-era statute is rarely used against Americans; in fact, before Jan 6, no American had ever been convicted of it.
By exploiting the law’s vague language–“to oppose by force…to prevent, hinder or delay the execution of any law of the United States”–prosecutors have won easy guilty verdicts before DC juries. (Force, by the way, does not require the use of a weapon. It could be something as minimal as pushing over a bike rack or posting inflammatory texts in group chats. One prosecutor claimed agreeing to a conspiracy could be something as fuzzy as nodding one’s head. This is your DOJ, folks.)
Straining the Connection Between J6 “Militias” and Trump
The ten defendants so far convicted of seditious conspiracy are tied to either the Proud Boys or Oath Keepers–and that’s the legal pathway to Trump. Prosecutors made Trump a key figure in the Proud Boys seditious conspiracy trial by claiming they were “Trump’s army.” DOJ played the 2020 debate clip where Trump said “Proud Boys, stand back and stand by” on several occasions during the 4-month trial.
The Jan 6 committee attempted to tie the Proud Boys and Oath Keepers to Trump and his associates including Roger Stone; committee members also advised DOJ to pursue seditious conspiracy charges against Trump.
Both the obstruction and seditious conspiracy counts could result in long prison time for Trump if he’s convicted by a DC jury. (Keep in mind, DOJ has a near-perfect conviction rate before jurors in a city that voted 92% for Biden.) Indictments could also result in pretrial detention since DC judges have denied release to J6ers based on one or both counts.
DOJ asked for 25 years in prison for Stewart Rhodes, for his conviction on seditious conspiracy. (He was sentenced to 18 years, which DOJ is now appealing). Kelly Meggs, an Oath Keeper who committed no violence, spent almost 2 years in jail before his trial began. He was convicted of seditious conspiracy and sentenced to 14 years in jail. (DOJ also appealing his sentence.)
I’ll have more later on possible co-conspirators but suffice to say it could be a very long and distinguished list.
Keeping Trump Out of Office
But the real bombshell charge would be 18 U.S. Code § 2383, inciting a rebellion or insurrection. Anyone convicted, per the statute, “shall be incapable of holding any office under the United States.” That is, of course, the Biden regime’s ultimate goal in regard to Trump.
Even if Smith doesn’t bring the 2383 charge, a multi-felony indictment–other offenses may include fraud, perjury, tampering with witnesses–will hang over Trump’s head throughout 2024. How Trump’s mounting legal problems will influence the electorate as a whole remains to be seen. And if Smith successfully seeks pretrial detention or even strict release conditions–home confinement, a nightly curfew, wearing a monitoring device–who knows how voters will react?
It could be political death by a thousand cuts–something Joe Biden, who remains just a few points ahead of Trump in many general election polls, is undoubtedly hoping for.