Beware of ‘Bollman’

The conviction of the founder of the Oath Keepers, Stewart Rhodes, of seditious conspiracy to overturn Joseph Biden’s election as president marks a major victory for the government. The conviction is of a major crime — it has been likened to “treason’s sibling” — and will hold portents for “all those” who performed “any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy.”The words within quotation marks are of the fourth Chief Justice of the United States, John Marshall. That was in a treason case against two confederates of Aaron Burr, Erick Bollman and Samuel Swartwout. In 1807, Marshall acquitted them after concluding that because war hadn’t been actually levied against America, treason wasn’t possible. Then, though, he issued a warning that has rung down through the centuries and about which we’ve often written. “It is not the intention of the Court,” Marshall wrote, “to say that no individual can be guilty of this crime who has not appeared in arms against his county. On the contrary, if war be actually levied — that is if a body of men be actually assembled for the purpose of effecting by force a treasonable purpose — all those who perform any part, however minute or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors.”We understand that no one connected to January 6 has been accused of per se treason. If, though, seditious conspiracy is the sibling of treason — Laurence Tribe was the phrase maker — then it would seem only logical that the warning Marshall issued in Ex Parte Bollman would now hold, by extension, to any of those who might yet be found to have conspired with Mr. Rhodes, a number that could become huge.“Seditious conspiracy,” the Times reports, “is the most serious charge brought so far in any of the 900 criminal cases stemming from the vast investigation of the Capitol attack.” The Times reckons that the inquiry “could still result in scores, if not hundreds, of additional arrests.” The paper notes that seditious conspiracy carries a maximum penalty of 20 years in stir. So the jury’s conclusion adds up to a serious moment.All the more so because it’s hard, at least for us to detect, the stench of politics in the prosecution of Rhodes and his confederates. They are not politicians running for public office. They are no political threat to the administration. Yet, in landing these convictions the government has established a legal beachhead, from which, if it wishes, to take aim at President Trump and others. Expect his name to come up during negotiations for a sentencing deal. General Garland’s prosecutors were denied a total victory, as Rhodes was acquitted on two further charges of conspiracy, and three of his alleged confederates avoided conviction on the basis of sedition. All five defendants were convicted of crimes. Jurors appear to have been convinced that in the words of a prosecutor, the Oath Keepers “concocted a plan for an armed rebellion.” That finding will now be contested on appeal. Of greater import than the tarring of Rhodes as a seditionist is the fresh legal reality that a jury has determined that what happened on January 6 was a conspiracy. That spider’s web now awaits further unspooling. The special counsel, John Smith, who is tasked with examining Mr. Trump’s role in January 6, could now scour the record for evidence to use Chief Justice Marshall’s dicta as dispensation to implicate the former president in the plot.

Beware of ‘Bollman’

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