Storming the Bill of Rights

The Right has long been unfriendly to civil liberties, at least where civil liberties clashed with the will of law enforcement. This needs to change.

As soon as police secured the Capitol building on January 6, only a few hours after rioters had entered, the gears at the Department of Justice began grinding out tactics and strategies to investigate and charge the rioters. 

Having downplayed riots instigated by Black Lives Matter and Antifa in Washington, D.C., and across the country throughout 2020, the Left, the media, and the FBI immediately inflated the events at the Capitol from a riot to an attempted coup d’etat, an armed insurrection, sedition, and domestic terrorism.

None of these terms are used in good faith, at least not as they are broadly applied to the group of rioters, whatever may have been the state of mind of a few isolated individuals. Compare the actual terrorism of the 1954 shooting in the House of Representatives by members of the Puerto Rican Nationalist Party. Planned. Calculated with political goals. Deadly. Yet the Capitol was not made a castle then.

No matter. The deployment of these terms in the media, by Democratic (and some Republican) politicians, and by FBI Director Christopher Wray means there is continuing, newly agitated, broad, and dangerous political will among our elites⁠—people who have the power to make this happen⁠—for the prosecution of political crime, aimed primarily at the Right.

A Tough Case to Make

This will be a challenge for the Department of Justice and the FBI. The behavior of most rioters, as bad as it was, is likely ambiguous when it comes to political offenses. That is, for most of the rioters, there will be little evidence of preparation for the events, other than the intention to gather and rally and protest outside the Capitol, a perfectly lawful thing to do. There will be scant evidence to show, for most rioters, they had foreknowledge they might be inside the Capitol at all. Evidence of political goals that would make their actions insurrection, sedition, or domestic terrorism—outside limited to ill-considered words they posted to social media, in many cases in jest, in almost all cases without any evident intent to act—will be as scarce as hen’s teeth.

This means the cases against most rioters for the more serious crimes—insurrection, sedition, terrorism—will be inherently weak. 

In the United States, people accused of a crime are entitled to indictment by a grand jury, and to be tried before an impartial jury from the place where the crime is committed. 

Grand juries are not a big hurdle, but juries in a criminal trial determine the facts of the case and interrupt conviction where the facts do not go beyond a reasonable doubt to support a conviction. Trials take time and resources. The accused is entitled to counsel in his defense, to subpoena witnesses, and to confront witnesses against the accused. The design of the Anglo-Saxon criminal justice system is to prevent the conviction of the innocent even if that means the guilty go unpunished. This is something law enforcement hates, and something everyone else would do well to cherish. 

Undermining Constitutional Defenses

The American criminal justice system, purposefully, is not a great tool to punish people en masse for political crimes. But today our criminal justice system is strained by a strong will to do so. Our leaders are old, imprudent, confused, and vindictive. Knowing who they are, we can predict some things to come. 

For one, there will be widespread efforts to abridge the right against self-incrimination. In order to obtain convictions, law enforcement and prosecutors will induce suspects to make false or incriminating statements which can be used to convict them for obstruction where they are not sufficient to convict them of the underlying crime. The Fifth Amendment right against self-incrimination will be bent if not broken.

Second, federal prosecutors will try to punish targets without a trial. The first way to do this is to seek to have the accused denied bail. This has already happened in the case of Jake Angeli, Richard Barnett, and 18-year-old Bruno Cua, as well as others. The Eighth Amendment, which prohibits excessive bail, will be trampled.

Third, prosecutors will overcharge not just primary targets, but related parties, such as family members, in order to induce the primary targets to accept plea bargains. Prosecutors may also encourage potential defendants to testify against other persons present at the Capitol in exchange for reduced sentences. Sedition requires the cooperation of two or more people. It would be unreasonable to expect prosecutors to be scrupulous about whether testimony on cooperation is founded in fact.

Fourth, law enforcement will seek avenues around the Fourth Amendment’s prohibition on unreasonable search and seizure. The FBI has already obtained information from Bank of America regarding the location of its customers and their purchases. That the FBI obtained appropriate warrants for these searches is doubtful. Wray in his testimony last week did not deny that the FBI was obtaining geolocation data without a warrant. He simply did not know. Curiouser and curiouser, as Alice said. In his hours of testimony, he showed almost no interest in civil liberties and a high interest in a crackdown on “domestic terrorism” which he clearly thinks preponderantly resides in the body of Trump supporters.

Habeas Corpus in the Dock?

Fifth, although this has not happened yet, with Washington, D.C. fortified and abuzz with hysteria regarding ongoing threats from domestic terrorists, law enforcement will look for ways to suspend, de facto, the writ of habeas corpus. That is, prosecutors will look for ways to detain suspects—or persons they disfavor whom they will suspect may be plotting future crimes—without charging them.

Article 1, Section 9 of the Constitution provides, “The Privilege of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” The Left and law enforcement have laid the ground for this by essentially declaring the events of January 6, 2021 “rebellion.” Expect to hear claims made by politicians, media, and prosecutors that public safety requires executive power to make arbitrary detentions.

The Right, historically, with its “law and order” tendencies, has not been good for civil liberties. On matters such as the right against self-incrimination and exclusionary rules, the Right has been naïvely interested in the power of police to lock up small-time criminals with relaxed constabulary standards assuming they had no need for the protection of these rights. The ordinary middle-class man or woman would never be a target, right? Big mistake.

These rights in origin were never principally about constabulary behavior, but about the use of criminal justice for political persecution.

It’s time for the Right to rethink its view on civil liberties.

About Jay Whig

J. Whig is an attorney practicing in New York and a resident of Connecticut specializing in insolvency and restructuring. Opinions are his own.

Photo: iStock/Getty Images

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