From the Right



What Happens When the Government Breaks Its Own Laws?

Judge Andrew P. Napolitano on

Five members of the Proud Boys are currently on trial for sedition in federal court in Washington, D.C. Sedition is a conspiracy to overthrow the federal government by the use of force. This case stems from the events of Jan. 6, 2021 at the U.S. Capitol. During the trial, an FBI agent inadvertently admitted that she was asked to doctor and to destroy evidence, and that her colleagues have spied on defense lawyers in the case.

The Department of Justice has pursued the defendants in Jan. 6-related matters with much zeal. The current Proud Boys trial, however, exceeds anything that has recently been revealed.

Here is the backstory.

A conspiracy is an agreement by two or more persons to commit a crime that they are able to commit in which at least one of those who embraced the agreement took at least one step in furtherance of it.

Prosecutors love conspiracy cases because they are easy to prove. Yet, every modern definition of crime includes an element of harm. Since conspiracy is essentially a thought crime, the courts have dispensed with the element of harm. Stated differently, the government needs only prove the existence of the agreement and the single step in furtherance of its consummation. The government need not prove harm.

There is never harm caused in conspiracy cases, as the so-called conspiracy does not succeed. If it did succeed, the government would charge the actual committed crime. Conspiracy is not the crime of attempt. Attempt requires that the defendants come just one material step short of completion. Attempt often does cause harm, as in an attempted murder in which the victim is shot by the defendant but survives.


Can a conspiracy exist that is impossible to succeed?

I have argued, and in my years as a judge in New Jersey I have ruled, that the answer to this is: No. If the conspirators concoct a plan that cannot succeed, then by definition there is not only no harm, but the prosecution is exclusively for the employment of forbidden mental processes.

Yet, the right to think as you wish is a natural right and thus is immune from governmental reach. The natural rights of persons, which the Ninth Amendment states government shall not deny or disparage, means that there is no moral or legal basis for government condemnation of ideas or thoughts. This includes, of course, all thoughts, even -- especially -- those that are negative about the government.

The attorneys for the Proud Boys lost this argument, as most courts simply defer to the government -- even when it prosecutes thoughts, even when it violates the natural law, even when the defendants have not harmed a hair on anyone's head. And there are no crimes prosecuted more aggressively than those in which the government portrays itself as the victim.


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Mike Shelton Mike Lester Monte Wolverton Lisa Benson Chip Bok Gary McCoy