I am generally uncomfortable with calling for insurrection laws being applied by persecutors. While the de-platforming of the President raises many, many concerns—including how arbitrary most social media providers are with enforcing their terms of service and how appealing them is a long nightmare–I am far, far more concerned with Joe “Crime and Counterterrorism Bills of the 1990s” Biden, our Healer-in-Chief, and how he has moved from his rhetoric of healing to invocations of “domestic terrorism” despite the DOJ and FBI being much more hesitant with the term.
You see, you can already throw the book at Freedumb Freikorp leadership as it is. You don’t need the invocation of domestic terrorism to do it either, particularly due to the laws around seditious conspiracy. Don’t believe me? Read Lawfare:
So the most relevant prohibition is Section 2384, which outlaws “seditious conspiracy,” defined as when “two or more persons … conspire to overthrow, put down, or to destroy by force the Government of the United States … or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.” Sedition is a serious charge, but a number of analysts (including Lawfare’s Benjamin Wittes) have raised the possibility that certain conduct related to yesterday’s debacle might meet the terms of the statute.
However, even Lawfare notes that in the past, BLM protests have had this charge possibly hanging over their heads:
Acting Attorney General Jeffrey Rosen (then in his capacity as deputy attorney general) voiced support for seditious conspiracy charges against Black Lives Matter protesters. In a statement yesterday, he condemned the violence as an “intolerable attack on a fundamental institution of our democracy.”
And it’s not just Rosen. Federal prosecutors have brought seditious conspiracy charges several times within the past 40 years.
Even barring that, you have bomb charges, the destruction of property, and specific laws to protect government officials. The leaders of Wednesday’s insurrection are going to hurt and, probably, hurt bad.
A friend of a few friends of mine, Edith Ancheta, explains why this talk domestic terrorism is so dangerous, particularly if expanded from the prior DOJ understandings:
More thoughts on the terror framing, just because I want to drive this point home. The actions taken on the 6th were already illegal, even without domestic terrorism legislation. Many of those arrested so far are facing 4+ federal charges, and in truth many could be charged with more under existing laws. The simple fact is that if you do believe that its important for the federal government to be able to prosecute in the wake of events like the 6th, then I have good news: They already can. ;
What would domestic terrorism legislation actually achieve that current law does not? A few things, but most importantly, a massive expansion of the scope of “material support for terrorism” charges.
Courts have upheld that material support charges are valid when citizens have shared propaganda from international organizations designated as terrorists, offered advice to international organizations designated as terrorists on how to seek a peace plan with the states they are combatting, or even accidently providing financial support to front organizations for groups designated as terrorist groups.
So if you suddenly have a domestic terror law that can create a list of domestic terror organizations, the scope of the material support charge increases. Donated money to a bail fund that assisted a communist organization now deemed a domestic terror organization? You’re looking at 10+ years in federal prison. Shared a blog post from a black liberation organization now designated under this bill? Yeah same risk.
The only purpose of a domestic terror bill is to expand the scope of the material support charge. This is to isolate dissidents and make it illegal to publicly support their causes. Police departments around the US are finding that there officers were at the riot in DC. The fascists are part of the policing apparatus. The solution to this kind of right wing violence is not to expand the police state but to oppose it entirely.”
Currently, as Vox pointed out and I did in a post earlier today, the definition of domestic terrorism from a dictionary perspective may apply, but not a legal one.
Lastly, the impeachment push on Trump is something that I can theoretically support on matters of justice. If for no other reason than the public will, and while I had thought that there was no way Joe Biden would pursue criminal charges on Trump at the federal level, I no longer think this is necessarily true. However, it is also abundantly clear that the Senate will stall impeachment until after Trump’s term is concluded anyway. I agree with Mike Davis that this is a convenient way to kill Trumpism, but the paranoiac unconscious that has been brewing since Nixon that was unleashed with racialist overtones is not going back in the bottle:
The goal is a realignment of power within the Party with more traditional capitalist interest groups like NAM and the Business Roundtable as well as with the Koch family, long uncomfortable with Trump. There should be no illusion that ‘moderate Republicans’ have suddenly been raised from the grave; the emerging project will preserve the core alliance between Christian evangelicals and economic conservatives and presumably defend most of the Trump-era legislation. Institutionally, Senate Republicans, with a strong roster of young talents, will rule the post-Trump camp and, via vicious darwinian competition – above all, the battle to replace McConnell – bring about a generational succession, probably before the Democrats’ octogenarian oligarchy has left the scene. (The major internal battle on the post-Trump side in the next few years will probably center on foreign policy and the new cold war with China.)
That’s one side of the split. The other is more dramatic: the True Trumpists have become a de facto third party, bunkered down heavily in the House of Representatives. As Trump embalms himself in bitter revenge fantasies, reconciliation between the two camps will probably become impossible, although individual defections may occur. Mar-a-Lago will become base camp for the Trump death cult which will continue to mobilize his hardcore followers to terrorize Republican primaries and ensure the preservation of a large die-hard contingent in the House as well as in red-state legislatures. (Republicans in the Senate, accessing huge corporation donations, are far less vulnerable to such challenges.)
Tomorrow liberal pundits may reassure us that the Republicans have committed suicide, that the age of Trump is over, and that Democrats are on the verge of reclaiming hegemony. Similar declarations, of course, were made during vicious Republican primaries in 2015. They seemed very convincing at the time. But an open civil war amongst Republicans may only provide short-term advantages to Democrats, whose own divisions have been rubbed raw by Biden’s refusal to share power with progressives. Freed from Trump’s electronic fatwas, moreover, some of the younger Republican senators may prove to be much more formidable competitors for the white college-educated suburban vote than centrist Democrats realize. In any event, the only future that we can reliably foresee – a continuation of extreme socio-economic turbulence – renders political crystal balls useless.
If you are still thinking that taking out the rapid ends of the GOP base will all for Democratic hegemony. Democrats, even with the win in Georgia, lost out on state level redistricting in this election just like they did a decade ago.
Be prepared for massive instability and low-level but possibly deadly political violence, but don’t for a minute think that these calls for a domestic war on terror.
Symptomatic Commentary 