18 USC § 2385 criminalizes "organizing any assembly of persons who advocate the overthrow of the government by force"—and distinguishes "force" from "violence."
The White House has organized fraudulent electors to block the democratically elected government from taking office.
The White House has organized fraudulent electors to block the democratically elected government from taking office.
(PS) I can't ascertain the scope of the word "force" in this statute (except that we can be statutorily sure it does *not* mean "violence") but creating a scenario—contra a Supreme Court ruling—in which there could be a hostile standoff at the White House on Jan. 20 may well fit.
(PS2) As a lawyer I'd tend to interpret "force" as meaning "unlawful compulsion short of violence" when it appears in a statute that deals with violence as a separate category. An unlawful attempt to retain the White House contra SCOTUS would be "force" under this interpretation.
(PS3) Arguably, creation of an "alternate slate of electors" under some color of authority—however false any such exercise of authority might be—wouldn't constitute "force." The White House has explicitly acknowledged that what it is doing isn't sanctioned by a legislature/court.
(PS4) So what Trump and his agents are doing is organizing an assembly of persons who advocate the overthrow of the democratically elected government under color of no authority whatsoever, under circumstances in which their actions—if successful—would produce a hostile standoff.
(PS5) As if conscious that he and Trump may be violating one of the suite of statutes broadly falling under the heading of sedition, Miller says the fraudulent electors have been organized in the event that *at some point in the future* they might exist under color of authority.
(PS6) The problem here is that by making this public utterance, Miller is acknowledging that this organization of persons advocating the overthrow of the democratically elected government is without color of authority *now*. There's no evidence he's protected by 18 USC § 2385.
(PS7) You don't have to be a lawyer to understand that this critical federal criminal statute would have no meaning whatsoever if you could violate it under a defense that you believed your unlawful actions could one day be made lawful by a *definitionally unlawful government*.
(PS8) Moreover, the fact that it is non-lawyer Stephen Miller making this announcement rather than someone from the White House Counsel's Office strongly suggests that no attorney in government believed this fraudulent slate of electors to be legal, and *feared* it was seditious.
(PS9) Not one American believes that Miller created these fraudulent slates of electors on his own. This is an action that would have to have been taken with the direct approval of the President of the United States. It is also not a federal crime the Biden DOJ could ever ignore.
(PS10) It is specifically the job of every attorney, including me, to stand on guard against federal crimes that destabilize our democracy—whether or not they will be politically successful. It simply *doesn't do* to say this should be ignored because *politically* it won't work.
(PS11) If there were color of authority here—if this had been authorized by a court or legislature—it'd be a strong argument that there's no unlawful compulsion involved in this scenario (the only reasonable interpretation of what the statute could mean by "[non-violent] force").
(PS12) But what Donald Trump sent Miller on Fox News to declare is that a *political campaign* has concurrent authority to that of a court or legislature to organize an assembly of persons advocating the overthrow of a democratically elected government via non-violent force.
No.
No.
(PS13) One of the problems we face in the law is in dealing with "matters of first impression": things that haven't happened before. Lawyers are naturally inclined to see novel situations and pretend that *the law doesn't apply to them* so they can avoid having to deal with them.
(PS14) When someone commits what is arguably a state-level misdemeanor under a fact-pattern that would be a matter of first impression, we can understand how this inclination to ignore a novel situation is comparatively harmless. It is *not* so in matters of seditious conspiracy.
(PS15) The easiest out here would be to say that the statute in question is only triggered by an overthrow-by-violence plot—but any lawyer in America will tell you that if a statute says "force or violence" then "force" *cannot* mean "violence." It's Statutory Interpretation 101.
(PS16) In a situation like this, politicians, political journalists, and lawyers who are primarily political analysts will all have the same natural—craven—inclination: let's just let this go, as Biden is going to win anyway.
That's not how attorneys are trained to think or act.
That's not how attorneys are trained to think or act.
(PS17) In fact, the creation of Donald Trump in the first instance is the product of a decades-long procession of self-serving politicians and politically minded lawyers saying that we should let things go where Trump is concerned because dealing with them would be far too messy.
(PS18) But let's take Trump out of the equation. Imagine that in 2024 the GOP nominee for POTUS loses... but the GOP controls both houses of Congress. Does federal law let random GOP voters appear before Congress as a slate of electors to try to steal the election? Choose wisely.
(PS19) If the dire scenario I've just described sounds like it would be the end of American democracy and indeed the end of America—as it sure would be—ask yourself, now, which *federal statute* prohibits that scenario? It would appear to be the one I'm threading about right now.
(PS20) The act that Trump and Miller appear to have committed here—as part of a conspiracy with literally scores of others (organizing these fraudulent slates of electors and comprising these slates) is punishable by up to 20 years in prison. Media must cover this story now. /end
(NOTE) Lest anyone try to be clever and claim that a January 6 Congressional vote could/would be a future grant of authority to Trump's fraudulent slates of electors, keep in mind that any such vote would be illegal and unconstitutional—so cannot clear the criminal offense here.
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