Snuffing Out Bad Faith With The Force of Law

That I haven't penned a Bad Faith Times post in a while doesn't mean ideas of BFT columns aren't constantly swirling in my head. They are. It's just that this is football season and I get paid to analyze football.

So this will be a quick post about something I don't think the left has fully grasped: Using the full force of law to scare the shit out of folks on the right who even think of staging another insurrection.

(And yes, I'm aware of the nihilistic subsection of the American left wing that either doesn't think the January 6 insurrection was a big deal or that the whole ordeal was a plot hatched by the FBI. This is deeply unfortunate and demonstrates the ease with which people on the far left can filter toward the far right as a sort of cultural rejection of civilizational norms. The right wing, after all, is the new punk rock.)

Federal prosecutors have brought charges of seditious conspiracy against members of the fascist group called the Oath Keepers, whose leader in 2020 rallied his members to take up arms and overthrow the government before Joe Biden could be seated as president. The attorney representing the Oath Keepers in this case says that's all wrong: All his clients wanted was for Donald Trump to invoke the Insurrection Act so the Oath Keepers could legally use lethal force against anyone who opposed Trump's coup. All they wanted, the attorney claims, was to mow down anti-Trump protesters and Biden backers so Trump could defy the law and remain in office indefinitely. No biggie.

“We aren’t getting through this without a civil war,” said Stewart Rhodes, the Oath Keepers leader who orchestrated the violent coup attempt.

Seditious conspiracy charges, originally used after the Civil War to punish southern traitors who should have been stripped of their citizenship after the war, is a major escalation in the federal government's response to the January 6 insurrection. And it's very much justifiable if the United States wants to punish those who would have ended American democracy so their clown gameshow host could stay in the Oval Office, posting to social media, watching cable news, and chatting with the few Hollywood celebrities who would still talk to him.

Seditious conspiracy comes with a maximum of 20 years in prison, which frankly is not harsh enough. Though I'm not advocate for incarceration, bringing down the hammer on anyone and everyone involved in January 6 is the only viable way to deter the American right from trying it again, whether that's in 2024 or 2028 or 2048. No one who was there at the Capitol that day should be spared. The government has to use the full force of law to put them in cages for as long as possible. Their lives must be ruined if a message is to be sent to this and future generations of potential insurrectionists: Fuck around and find out.

Bringing seditious conspiracy charges, of course, has its limits, as analysts at Lawfare wrote.

But the indictment also shows the limits of the criminal law in responding to Jan. 6. To limit inevitable legal challenges, the Justice Department has centered its case on the sorts of violent acts that are among the least controversial applications of the seditious conspiracy statute and related criminal provisions. And while this constrained model of a conspiracy may well maximize the chances of holding Rhodes and other similarly situated defendants accountable, it most likely excludes those political leaders who drove the events of Jan. 6—including the man who many believe bears the greatest responsibility, former President Donald Trump.

The message would be clear to anyone who willingly engaged in the bad-faith politics and lies that led conservatives to reject the perfectly valid results of a free and fair election. They used bad faith arguments to create an entirely new reality in which Joe Biden unseated Trump through nefarious means. The end result of their bad faith meant that Trumpists were in fact trying to stop a coup rather than execute one. This twisting of reality can't stand.

The right wing is all too happy to deploy the law as a weapon against its many and varied political enemies. We saw this time and again during the Trump years, as federal prosecutors were told in no uncertain terms that they were to use their power against Donald Trump's opponents. I'm not advocating a left-wing version of this sick subversion of justice, but rather the harshest possible deployment of the law to quash any ideas of a future insurrection.

The Biden administration, with enough guts and enough willingness to wield power, can snuff out the bad-faith politics that in 2020 nearly led to an overthrown government. We better hope they do.

Follow Denny Carter on Twitter at @CDCarter13.