by Angelo M. Codevilla
The attempt of America’s ruling class to convict 455 persons of “armed insurrection”—i.e. of waging war against the United States, a species of treason—for protesting insufficient scrutiny of the 2020 election on January 6 in the Capitol, while at the same time it excuses and even cheers the burning and looting of courthouses, police stations, and downtowns all over America, is not the exercise of a “double standard.”
The people in and out of government who do this are not corrupt. Instead, acting as part of the regime—the oligarchy—they are replacing the American republic and waging war to crush its remains.
The sooner Americans realize that we are being governed by people at war with our Constitution and contemptuous of ourselves, the sooner those people may be treated as the enemies they are.
In the Washington Post, the Justice Department explained why the words of its indictments of those it claims trespassed on the Capitol will not result in the severe prison sentences they imply. Those words try to fit acts prima facie of mostly peaceful protest into the Democratic Party’s and associated oligarchy’s narrative of “armed insurrection against our democracy.” But in the Post story these “legal experts” mention regretfully that, their best efforts notwithstanding, what remains of the U.S. legal system cannot wholly erase the fact that “trespassing is still only trespassing, even in the U.S. Capitol,” and that “a misdemeanor is still only a misdemeanor.” Drat, still!
Nevertheless, these prosecutors and friendly experts fill most of the article with how they combine unlimited pretrial detention under harsh circumstances and limitation of legal assistance to press the accused to accept maximum penalties and to forgo bringing cases to juries.
The Narrative vs. Reality
Keeping evaluation of cases within the administrative-judicial system—out of the hands of the accused’s peers—is an essential part of suppressing the reality of what happened and did not happen on January 6. Forcing the accused to plead guilty to charges formulated according to the narrative that white supremacist Americans unlawfully obstructed the 2020 election is essential to establishing the validity of that fraudulent political claim.
That, in turn, is an essential weapon in the oligarchy’s attack on the American republic and its supporters. Reality is the opposite: the oligarchy itself committed the only unlawful acts of interference during the 2020 election. Anyone looking for evidence of oligarchic interference may begin with Time magazine’s February 4 story, “The Secret History of the Shadow Campaign That Saved the 2020 Election” and continue to the ongoing campaigns to thwart audits of vote counts.
Today’s Justice Department, acting as part and parcel of the oligarchy that calls itself “our democracy” has pushed partisanship to the point of war by one regime in favor of another. Inevitably, this has created the horrid reality of political prisoners among us—people who are being punished for supporting the republic against the oligarchy. When regimes war on each other, whose side you are on becomes the practical definition of justice.
The following shows that the oligarchy’s system of justice consists precisely of negating what the U.S. Constitution defines as right. The founders passed the Bill of Rights, especially the Fourth through Eighth Amendments, precisely to place the judicial power’s capacity to hurt individuals ultimately and firmly in the hands of the people. They did it to prevent those in power from using that power to cow opposition and force support. But that is exactly what the regime that calls itself “our democracy” is doing.
Consider: The Fourth Amendment prohibits officials from searching a person or his home and papers without prior consent or a legal order. A warrant must be based on probable cause, or reasonable suspicion of criminal behavior. It must also be very specific in describing the place to be searched and the persons or things to be seized. The Fourth Amendment is intended not just to prevent bothersome “fishing expeditions” into innocent matters. It also means to outlaw using investigations themselves as a form of punishment and intimidation.
And yet first the Justice Department, and now regime-friendly judges, have used and are using investigations to draw a dragnet through American society to embarrass, punish, and chill countless persons who are or may be opposed to the oligarchy’s desires. Having been at the Capitol on January 6, or merely in Washington, D.C., has been enough to earn a SWAT team’s intrusion and trashing of one’s home. Other departments of government including the armed forces, plus any number of corporations, examine social media posts for heterodox views. Though punishment does not always result, spreading fear always does. Which is the main point.
Political Power vs. Constitutional Rights
The Fifth Amendment’s prohibition of compulsory self-incrimination was meant to prevent officials from pressuring suspects into admitting guilt for crimes they did not commit. Guilt and innocence were supposed to be determined at trial. But the modern American justice system relies almost entirely on over-charging offenses and then discounting them to obtain a guilty plea—the truth of what really happened be damned. This has placed dictatorial discretion in officials’ hands, resulting in laxity for socio-political favorites and oppression for those out of favor.
Misuse of the plea bargain system is playing a major role in the oligarchy’s attack on the republic because the oligarchs are combining it with neglect of the Sixth Amendment’s guarantee of a speedy and public trial by an impartial jury, to hear and question witnesses, and to be defended by a lawyer. Trials for the events of January 6 are not to begin until at least some nine months after the fact, on no particular schedule. During this lengthy and indeterminate time, the accused are held in solitary confinement under conditions harsher than most murderers ever experience. Their lives have already been ruined. And for what? The pressure on them is enormous to sign anything and at least set a date by which their nightmare will end.
This is possible because the Justice Department also acts in defiance of the Eighth Amendment, which protects against excessive bail or fines. The Constitution’s framers assumed that all but a few dangerous defendants would be granted bail—money pledged in exchange for the promise to appear for trial. Overheated rhetoric aside, none of the persons arrested in connection with January 6 actually injured anyone, or have a history of injuring anyone. The allegation that they are dangerous is purely a political one, and the purpose of denying them bail is all too obviously to pressure them to support a political narrative and to warn the oligarchy’s potential opponents of what the administrative system has in store for them.
Deny Their Legitimacy
The Eighth Amendment also forbids cruel or unusual punishment. What might that be for trespassing? What is cruel or unusual punishment for disagreeing with the socio-political agenda of powerful people?
The Bill of Rights has long since applied to the states. Erasing the distinction between what had been public and private, between the powers of those in political office and those of corporations, institutions, etc., is oligarchy’s essence.
Arguably, the imposition of very cruel penalties on persons out of step with people and institutions that are part of the ruling oligarchy is contemporary America’s most prominent feature. These include deletion of careers and livelihoods, public imputations of racism, etc. They amount to something like outlawry.
And for what, specifically? Loud and clear is the ruling narrative: “our democracy” is under armed assault by hordes of white supremacists who lurk throughout society, ready to unleash another, deadlier version of January 6. But the reality is that “trespassing is still only trespassing.”
To keep this reality in context, one might recall Arlo Guthrie’s hilarious 1967 song “Alice’s Restaurant,” the saga of a hippie arrested for dumping trash, whom the legal system throws in with “all kinds of mean nasty ugly looking people . . . Mother rapers. Father stabbers. Father rapers! . . . nasty and ugly and horrible crime-type guys sitting on the bench next to me! . . . And the meanest, ugliest, nastiest Father raper of them all . . . he said, ‘What were you arrested for, kid?’ And I said, ‘Littering.’ And they all moved away from me.”
Humor and irony, however, are powerless against the logic of warring regimes. The oligarchs are not fooling around. Appealing to the Constitution can only increase their determination to bury its remnants under the administrative powers it creates or enhances. This is a regime alien and inimical to ours.
That is good as well as bad news. The good aspect of it is that we who swear to uphold the Constitution against all enemies foreign and domestic owe no allegiance whatever to the oligarchy that now runs this country. Nor can we persuade them about right and wrong. If we are to avoid becoming the oligarchy’s mere subjects we can and must treat them as the enemies they are: deny their legitimacy, and rebuild the republic amongst those of us who love it.
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Angelo M. Codevilla is a distinguished fellow of the Center for American Greatness. He is professor emeritus of international relations at Boston University and the author of To Make And Keep Peace (Hoover Institution Press, 2014).