The Future of ICE Protests Rests on This Prosecution

Search transcript0:000 secondsThere’s major progress in the story of nationwide ICE protests. And whether you’re pro or anti-ICE, a new prosecution is going to change how the federal government handles protests.0:1010 secondsGuys, it’s time for some game theory.0:1313 secondsLast week, a federal grand jury in Minnesota handed up 94page indictment against 15 people, United States Vant.0:2020 secondsAnd to tie all 15 together, prosecutors reached for a statue that almost never gets used. one that traces back to the Civil War and was rebuilt during0:2828 secondsreconstruction to break the Ku Klux Clan and protect federal officers. That statute is title 18 section 372. And whether this case holds up may come down0:3737 secondsto a single question that has nothing to do with blockades or shields or trucks and everything to do with the First Amendment.

I’m going to walk you through0:4444 secondswhat was really charged in this case, where the law is thin, and the one fault line that I think decides it. Let’s get into it. Start with the statute because most people have never heard of it.0:5353 secondsSection 372 makes it a crime for two or more people to conspire to prevent a federal officer by force, by intimidation, or by threat from carrying1:011 minute, 1 secondout their duties. Hold on to those three words: force, intimidation, threat. They are the whole ball game, and we’ll come back to them. This is an old law. It1:101 minute, 10 secondsstarted as an 1861 Civil War conspiracy statute and it was expanded in 1871, part of the reconstruction era effort to1:171 minute, 17 secondsenforce the 14th amendment, break Kux Clan terrorism, and protect federal officers from organized intimidation.

It has been used a handful of times since.1:251 minute, 25 secondsThere’s not a deep bench of cases, so whether these prosecutions hold up on appeal is very hard to predict right now. One of the cases is from New Hampshire where a couple was sentenced1:341 minute, 34 secondsfor tax evasion and decided to arm up and barricade their home against the federal agents coming to arrest them.1:391 minute, 39 secondsEdward and Elaine Brown turned a 5-year tax fraud sentence into 37 years after they stockpiled weapons, rigged booby1:461 minute, 46 secondstraps, and threatened to kill US marshals who came for them. They appealed their section 372 case, and it was affirmed on appeal in the First1:541 minute, 54 secondsCircuit.

The second case arose from the events of January 6th, 2021. Federal prosecutors charged it against some of the oathkeepers. The Caldwell defendants2:022 minutes, 2 secondswere charged under section 1512, obstruction of an official proceeding, section 2384, sedicious conspiracy, and2:092 minutes, 9 secondssection 372 itself. Kelly Megs, Kenneth Harelson, and Jessica Watkins were all convicted of section 372, but Stuart Rhodess and Thomas Caldwell were2:172 minutes, 17 secondsacquitted on that count. In a second trial, Roberto Minuta, Joseph Hackett, David Merell, and Edward Vjo were all2:242 minutes, 24 secondsconvicted on 372. So across both trials, section 372 actually had a strong conviction rate.

Seven out of nine2:322 minutes, 32 secondsdefendants found guilty and none of these cases were overturned on appeal.2:372 minutes, 37 secondsSo even though the case law isn’t very deep, the modern DOJ has a good track record of making them stick in front of a jury. So, now we’re looking at2:442 minutes, 44 secondsMinneapolis, where prosecutors are working with a 94-page indictment full of operational details about how individuals conspired to use force,2:522 minutes, 52 secondsintimidation, and threats to impede federal officers from doing their job, arresting people that immigration courts had decided were subject to detention,3:013 minutes, 1 secondpossible deportation, and removal. What I want to do today is understand what the law is and maybe forecast the implications of this somewhat novel3:083 minutes, 8 secondsprosecution.

When a statute is thin on precedent, the defense gets room to argue that the law itself is unconstitutional. Not just that their client didn’t do it, but that the3:173 minutes, 17 secondsstatute reaches things that the Constitution actually protects. And in this case, the argument writes itself.3:223 minutes, 22 secondsHere’s the architecture of the indictment cuz the structure tells you the prosecution theory. Count one is section 372 conspiracy. It is the only3:303 minutes, 30 secondscharge that names all 15 defendants. It alleges that they were part of a group, Twin Cities Direct Action, later renamed3:373 minutes, 37 secondsDirect Action Minnesota, that organized to physically stop ICE and Homeland Security Officers, from doing3:443 minutes, 44 secondsimmigration enforcement, centered on a blockade of the Whipple Federal Building, which is ISIS’s headquarters for the upper Midwest.

Then counts 23:533 minutes, 53 secondsthrough 8 are individual charges hung on specific people. Notice the shape of this. The substantive charges, the assaults, the threats, the property4:004 minutesdestruction, those are concrete. They’re tied to named individuals on specific dates. And frankly, they look like the strongest part of the case. The hard4:084 minutes, 8 secondspart, the legally novel part is count one, the conspiracy that turns 15 separate people into a single criminal enterprise. And the government built that conspiracy out of 269 overt acts.4:204 minutes, 20 secondsSome are physical. A lot of them are speech. Now, the prosecutors who wrote this are not amateurs, and you can see them steering around the danger.4:294 minutes, 29 secondsRemember those three words, force, intimidation, or threat.

The constitutional minefield is in intimidation and threat because those4:384 minutes, 38 secondscan be just words. So the indictment leads hard on force, physical obstruction, blockades built from debris and vehicles, homemade shields used to4:474 minutes, 47 secondsphysically push through lines of officers, a trailer flipped across an intersection to trap ICE vehicles, ice blocks thrown at law enforcement cars.4:554 minutes, 55 secondsThat is the government’s strongest ground because physically blocking an officer from doing his job is about as close to the literal text of this statute as you can get. But if this case5:045 minutes, 4 secondswas only about that, the physical blockade, it would be a much simpler case.

But it isn’t just about that. And this is where it gets constitutionally5:125 minutes, 12 secondsinteresting. Scattered through those 269 overt acts are things that are unambiguously protected speech. articles5:205 minutes, 20 secondspublished on an anarchist blog, Facebook posts, Instagram videos, statements like we need to become ungovernable and you will never win with non-violence alone.5:305 minutes, 30 secondsHere’s the problem. Advocating an idea, even an ugly, radical, revolutionary idea, is protected by the first amendment. The Supreme Court settled5:395 minutes, 39 secondsthis in 1969 in Brandenburgg. The government cannot punish the abstract advocacy of force. It can only punish5:465 minutes, 46 secondsspeech that is directed to inciting imminent lawless action and likely to produce it.

And there’s a second case that’s even more directly on point. And5:535 minutes, 53 secondsif I’m on the defense team, it’s the first thing I cite. NAACP versus Claybourne Hardware 1982. Claybourne6:016 minutes, 1 secondHardware came out of a civil rights boycott in Mississippi. Some participants in that boycott committed acts of violence and the Supreme Court6:086 minutes, 8 secondsheld that you cannot hold an entire political movement liable for the protected speech and association of its members just because some of them broke6:166 minutes, 16 secondsthe law. To pin unlawful conduct on a specific person, the government has to show that the person authorized, directed, or ratified the actual6:256 minutes, 25 secondsviolence, not that they marched, not that they spoke, not that they belonged.6:306 minutes, 30 secondssit with that because it maps almost perfectly to this indictment.

You have a self-described decentralized political movement. You have protected advocacy6:396 minutes, 39 secondsand you have some members who allegedly cross the line into force. The constitutional question is whether the government is prosecuting the force or6:466 minutes, 46 secondsprosecuting the movement. The government’s answer and its legitimate one is that the speech isn’t being charged as the crime. It’s being offered6:546 minutes, 54 secondsas evidence. Evidence of the agreement, evidence of intent. And that’s a real and recognized distinction. And you’re allowed to use a defendant’s words to7:027 minutes, 2 secondsprove what they meant to do. But across 269 overt acts in front of a jury, that line gets blurry fast.

Expect the7:097 minutes, 9 secondsdefense to file a motion to strike every speech-based overt act. And as an applied first amendment challenge, argue7:167 minutes, 16 secondsthat the whole prosecution is aimed at protected protest. That motion is where this case gets won or lost long before any jury sees it. There are a couple7:257 minutes, 25 secondsmore issues. Check them out. First, is this one conspiracy or several? The indictment itself describes the group as7:327 minutes, 32 secondsdecentralized, but that’s color for the press, but it’s a gift to the defense.7:367 minutes, 36 secondsThere’s a classic doctrine here from a case called Kotyakos. You cannot staple a bunch of loosely connected people into a single conspiracy just because they7:447 minutes, 44 secondsshare politics and some overlapping contacts.

If it’s really a bunch of separate little agreements, count one has a structural problem. Second, the7:537 minutes, 53 secondsintent gradient. A section 372 conviction requires that each defendant knowingly joined the agreement to use8:008 minutesforce. For some of them, the messages are damning. Talk of flipping a trailer to block a road, of letting a truck, quote, go missing. For others, the8:088 minutes, 8 secondsalleged conduct is logistical or expressive, and the government will have to prove that they signed up for the force, not just the cause. That’s where8:168 minutes, 16 secondsyou’ll see fights over severance, trying to split the defendants into separate trials. Here’s the nuance I’d hold in mind.

The split verdicts in the8:238 minutes, 23 secondsOathkeepers trial, Roads and Caldwell both acquitted on the section 372 count while seven others were convicted. It tells you that this charge is an8:318 minutes, 31 secondsautomatic. A jury will convict on a concrete assault in a heartbeat and will still scrutinize the broad conspiracy to impede officers theory, but it sticks8:408 minutes, 40 secondsmore often than not. So, the soft spot in Minneapolis isn’t the statute’s track record. It’s this indictment’s breath.8:488 minutes, 48 secondsone conspiracy stretched across 15 people in a whole movement with protected speech as the mortar holding it together. So I think that this is a8:568 minutes, 56 secondshugely important case because it’s clear to me if if not in a legal sense than in a practical one that there’s a coordinated movement to oppose the9:049 minutes, 4 secondsexecutive branch’s policy of enforcing immigration law.

There’s a broader effort to label the Department of Homeland Security’s actions that as9:119 minutes, 11 secondssomehow fascistic, to argue that they shouldn’t be enforcing Title 8 immigration law, and that people have a right to physically oppose the9:199 minutes, 19 secondsgovernment. That’s costing millions of dollars, the effort is not nonviolent, and it skirts the line of forming up a militia on US soil against the federal9:289 minutes, 28 secondsgovernment. The comparisons to post civil war clan era, the very thing that this statute was built for, to me, it starts to look on point. Ah, but the9:379 minutes, 37 secondsdifference between someone’s practical impressions and what the law actually says is exactly why we have trial courts, appeals courts, and ultimately9:449 minutes, 44 secondsthe Supreme Court.

We’re going to test those boundaries. So, I’m not telling you that these defendants are innocent, and I’m not telling you that they’re guilty. That’s not my job. My job is to9:539 minutes, 53 secondsidentify the strategic trend, that there’s a conflict between a decentralized movement and centralized authority in America, and something has10:0010 minutesto give. And this story is very newsworthy. This is the most aggressive use of a reconstruction era statute in10:0710 minutes, 7 secondsliving memory. The force-based theory is well-built. The vulnerability is in the case’s breath, stretching one conspiracy across 15 people and an entire protest10:1610 minutes, 16 secondsmovement using protected speech as the mortar that holds it all together.

So, watch the pre-trial motions. Watch for citations to Clayborn Hardware. Watch10:2510 minutes, 25 secondswhether the judge lets speech based over it acts stand. That ruling will tell you more about how this ends than any piece of footage from the blockade itself.10:3310 minutes, 33 secondsThis is a really important case for the future of the United States. Thanks for joining me on Game Theory today. Keep thinking.Sync to video time