The jury may be deadlocked and unable to return a verdict in the high profile January 6 trial against prominent Proud Boys
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:
Overthrow, put down, destroy or wage war against the U.S. government Oppose the authority of the U.S. government Prevent or delay the enforcement of any American law Steal federal property Related The Reign of Quantity 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”.
Related BIDEN: 'Climate Change' Most 'Existential Threat To The World,' Not Global Nuclear War “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.