Last month, former president Donald Trump succeeded in indefinitely delaying his trial on federal charges related to the January 6 riot at the US Capitol building. It is now unclear if or when he will stand trial for the federal crimes with which he was charged in August of last year.
The charges are primarily conspiracy charges. Specifically, Trump has been charged in federal court with one count of conspiracy to defraud the United States, one count of conspiracy to obstruct an official proceeding, one count of conspiracy against rights of voters, plus one count of an attempt to obstruct an official proceeding.
The fact that Trump is being charged with these conspiracy charges tells us how flimsy the evidence is that he actually committed any of the acts in question. That is, had Trump actually "defrauded the United States," or violated voting rights, you can sure that he would be charged with doing so.
In lieu of charges for real crimes, Trump is charged with "conspiracy" to commit these crimes. That is, he is charged with saying things that could be construed as part of a plan to commit a crime at some point in the future. As with conspiracy crimes in general, whether or not the underlying crime ever took place is irrelevant in court. Conspiracy charges exist to create new ways for government prosecutors to indict people who haven't actually committed the crime in question.
Rather conspiracy "crimes" are thought crimes in which a person says or thinks things that prosecutors will pretend are criminal acts. In the real world, however, "conspiracy to commit X" is not "X."
Conspiracy versus Real Crime
Conspiracy charges are commonplace in the federal legal system. The Congressional Research Service sums up the situation, stating
The United States Code contains dozens of criminal conspiracy statutes. One ... outlaws conspiracy to commit any other federal crime. The others outlaw conspiracy to commit some specific form of misconduct, ranging from civil rights violations to drug trafficking. Conspiracy is a separate offense under most of these statutes, regardless of whether the conspiracy accomplishes its objective.
This latter point is an important distinction. It is not necessary that the defendant charged with conspiracy harm anyone —i.e., that there be any actual victim. Indeed, conspiracy charges act as a way of charging individuals with crimes that might occur, but have not.
Moreover, it is not even necessary in all cases that a "conspirator" take any affirmative steps toward completion of the alleged conspiracy. While it is true that some federal conspiracy statutes "require at least one conspirator to take some affirmative step in furtherance of the scheme." It is also the case that "Many have no such explicit overt act requirement." Even in those cases where some "affirmative step" or overt act take place, it is not necessary that the act be illegal. The "act" could be publicly stating an opinion or making a phone call.
In a 2019 interview, Judge Andrew Napolitano highlighted some problems with conspiracy charges:
If it were up to me, there would be no such thing as conspiracy crimes because they are thought crimes and word crimes. But, at the present time in our history and in fact, for all of our history, regrettably, an agreement to commit a felony, agreement by two or more people or two or more entities to commit a felony and a step in furtherance of that agreement, constitutes an independent crime. ... In the world of freedom, where you and I and people reading this live, conspiracy is a phony crime. For 600 years of Anglo-American jurisprudence, all accepted definitions of crime contained an element of harm. Today, crime is whatever the government says it is.
As Napolitano correctly notes, the concept of conspiracy is relatively old in the common law in some form or another. Yet, the use of the idea in expanding federal prosecutions has grown enormously since the founding era. The Congressional Research Service's report continues:
This is not to say that conspiracy was unknown in pre-colonial and colonial England, but simply that it was a faint shadow of the crime we now know. ... The patchwork reached a point where one commentator explained that there were “few things left so doubtful in the criminal law, as the point at which a combination of several persons in a common object becomes illegal.”
That last sentence remains one of the most controversial aspects of conspiracy laws: at what point does talking and thinking about a crime becomes a criminal act? Legislators and the courts have never been able to provide any objective standard, and thus, prosecutors are afforded enormous leeway in stringing together a series of legal acts and claiming these constitute a conspiracy. The prosecutor merely need convince a grand jury that legal acts are really illegal. This is not difficult, as noted by Judge Solomon Wachtler when he cautioned that district attorneys could convince grand juries to "indict a ham sandwich."
Not surprisingly, people who are actually concerned about regimes abusing their power have long opposed conspiracy prosecutions.
For example, Clarence Darrow wrote on conspiracy prosecutions in his 1932 biography, concluding "It is a serious reflection on America that this wornout piece of tyranny, this dragnet for compassing the imprisonment and death of men whom the ruling class does not like, should find a home in our country."1
Darrow was at least partly joined in this opinion several years earlier by Judge Learned Hand who in 1925 described conspiracy charges as "that darling of the modern prosecutor's nursery" for the way it favors prosecutors over defendants.
Crimes of Thought and Speech Vaguely Defined
In the wake of the Vietnam War and the federal government's many attempts to prosecute antiwar protestors and activists for various crimes, many legal scholars took a closer look at the nature of conspiracy charges.2 Many were skeptical that conspiracy charges are either necessary or beneficial.3 Most alarming of all is the fact that the elastic and vague nature of conspiracy "crimes" means that, as Thomas Emerson puts it, "the whole field of conspiracy law is filled with traps for the unwary and opportunities for the repressor."4
One of the more famous cases of conspiracy prosecutions running amok was the 1968 prosecution and trial of American pediatrician and antiwar activist Benjamin Spock. Spock and four others were charged with conspiring to aid, abet, and counsel draft resisters. That is, they were charged with saying things. Although prosecutors could never show the "conspirators" committed any illegal acts—or were ever even in the same room together—Spock and three of his "co-conspirators" were found guilty in federal court. The case was eventually set aside on appeal, but on a legal technicality. The federal legal doctrines underlying conspiracy charges were never in danger.
Spock was able to avoid prison, but countless others have not been so lucky. Defendants who do not enjoy Spock's level of fame or wealth continue to find themselves locked in cages for saying things federal prosecutors don't like.
The legal incoherence of the charges laid against Spock—and against antiwar activists in general—was covered in detail in Jessica Mitford's 1969 book The Trial of Dr. Spock, in which she writes
The law of conspiracy is so irrational, its implications so far removed from ordinary human experience or modes of thought, that like the Theory of Relativity it escapes just beyond the boundaries of the mind. One can dimly understand it while an expert is explaining it, but minutes later, it is not easy to tell it back. This elusive quality of conspiracy as a legal concept contributes to its deadliness as a prosecutor's tool and compounds the difficulties of defending against it.5
Mitford further draws upon Darrow to illustrates the absurdity of these prosecutions, pointing out that Darrow described conspiracy laws this way: if a boy steals a piece of candy, he is guilty of a misdemeanor. If two boys talk about stealing candy and do not, they are guilty of conspiracy—a felony.
Again, we find that the foundation of conspiracy laws are thoughts and words, rather than any actual criminal acts. Or, as Abraham Goldstein put it in 1959: "conspiracy doctrine comes closest to making a state of mind the occasion for preventive action against those who threaten society but who have come nowhere near carrying out the threat."6
This ability to treat this "state of mind" as real crime means, in the words of Kevin Jon Heller:
the government currently enjoys substantive and procedural advantages in conspiracy trials that are unparalleled anywhere else in the criminal law. Conspiracy convictions can be based on circumstantial evidence alone, and the government is allowed to introduce any evidence that "even remotely tends to establish the conspiracy charged."7
Conspiracy Prosecutions Are a Means of Quashing Dissent
Conspiracy laws have long been used for a wide variety of alleged crimes, especially "conspiracies" related to federal drug crimes.
However, as the Dr. Spock case makes clear, conspiracy prosecutions hare also a tool against those who protest government policies. More specifically, given that conspiracy "crimes" are essentially crimes of words and thoughts, conspiracy prosecutions have long been employed as a way of circumventing the First Amendment. As the editors of the Yale Law Journal put it in 1970: "Throughout various periods of xenophobia, chauvinism, and collective paranoia in American history, conspiracy law has been one of the primary governmental tools employed to deter individuals from joining controversial political causes and groups."8
Or, put another way, through conspiracy prosecutions, the "government seeks to regulate associations whose primary activity is expression."9 Naturally, citizens are more reluctant to engage in expressive activities with others that could later be characterized in court as some kind of conspiracy.
Dr. Spock in 1969 was charged with allegedly saying things to others—i.e., a type of associating with others—to supposedly encourage anti-conscription activists. Any strict interpretation of the First Amendment—which is the correct type of interpretation—would tell us that this ought to be protected speech under the First Amendment. Federal courts, however, have long disagreed.
Some advocates of conspiracy might claim that speech encouraging a specific crime ought not be protected. Yet, in real life conspiracy prosecutions, it is not easy to determine whether or not a "conspirator" is actually encouraging a specific crime. As David Filvaroff notes, the actual intent and effect of the speech is difficult to interpret. Thus, judgements about whether or not speech counts as protected speech is highly arbitrary:
With a conspiracy to murder one faces a potential crime of finite proportion and of near unmistakable content. There is little, if any, risk that either the defendants themselves, or the court or jury, will mistake the criminality of what the defendants propose to do. The probability of such a mistake both by the alleged conspirators and by the trier of fact is very high, however, in the case of conspiracy to incite.10
Plans to murder a specific person are quite different from idle talk and expressed opinions about what a person thinks ought to be done to oppose some government institution or law. Most of the time, however, it is difficult for a "conspirator" to guess how others will interpret his words and what concrete actions might take place as a result. Did the speaker intend for his opinions to incite certain actions? To "prove" this, prosecutors often rely on little more than assertions and assumptions.
Under these circumstances, innocent people can end up serving years in prison for expressing their views about what government agents or government institutions ought to do or stop doing.
Trump's "Conspiracies"
Conspiracy law has long been a boon for federal prosecutors and this is clearly also true for Jack Smith, the special counsel attempting to try Trump on three different conspiracy charges. Smith—backed up by countless voices in the legacy media—contends that Trump is guilty of trying to unlawfully overturn the 2020 election. According to the 45-page indictment, Trump engaged in a "conspiracy to defraud the United States by using dishonesty, fraud, and deceit." The indictment also claims he engaged in a "conspiracy to corruptly obstruct and impede" Congress on January 6. Trump also supposedly conspired "against the right to vote."
So, what did Trump do in carrying out these conspiracies? The indictment admits that its evidence constitutes nothing more than things Trump said. According to Smith, the "conspiracies" were "built on the widespread mistrust the Defendant was creating through pervasive and destabilizing lies." That is, Trump publicly expressed opinions that people were free to accept or reject.
The indictment contains all the usual hallmarks of flimsy and questionable claims about criminal conspiracies. The indictment contends Trump acted together with "co-conspirators" although the so-called evidence shows no clear intent. Smith claims that Trump's incorrect statements about the election constituted "knowingly" spreading false information. How do we know that Trump knew these statements were false? Smith simply assumes this. Essentially, Smith's case is that Trump is guilty of conspiracy because he made a number of statements—most of them public statements told out in the open to forward this "secret" conspiracy—that were incorrect.
To reasonable people who actually take the First Amendment seriously, this should be an open and shut case. The natural right to free speech includes the right to say things and express opinions about elections. This includes statements that are wrong. In free countries, citizens are free to claim that elections are corrupt. Case closed.
The federal legal system is not so reasonable, however, and there is a good chance that Smith or some other prosecutor could convince a jury—as has happened in so many other conspiracy cases against ordinary people—that thoughts and words are not protected by the First Amendment after all.
- 1Quoted in Richard H. Minear, <em>Victor's Justice—Tokyo War Crimes Trial</em> (Princeton, NJ: Princeton University Press, 1971) p. 38.
- 2Fred. J. Abbate, The Conspiracy Doctrine—A Critique, <em>Philosophy & Public Affairs</em> 3, No. 3 (Spring 1974): 295.
- 3See Phillip E. Johnson, "The Unnecessary Crime of Conspiracy," <em>California Law Review</em> 61, No. 5 (Sept 1973).
- 4Thomas I. Emerson, <em>The System of Freedom of Expression</em> (New York: Random House, 1970), p. 411.
- 5Jessica Mitford, <em>The Trial of Dr. Spock</em> (New York, NY: Alfred A. Knopf, 1969) p. 61.
- 6Abraham S. Goldstein, "Conspiracy to Defraud the United States," <em>Yale Law Journal</em> 68 (1959): 406.
- 7Kevin Jon Heller, "Whatever Happened to Proof beyond a Reasonable Doubt? Of Drug Conspiracies, Overt Acts, and United States v. Shabani," <em>Stanford Law Review</em> 49, No. 1 (Nov. 1996): 111-2.
- 8Conspiracy and the First Amendment," <em>The Yale Law Journal</em> 79, No. 5 (Apr. 1970): 872.
- 9<em>Ibid</em>.
- 10David B. Filvaroff, Conspiracy and the First Amendment, <em>University of Pennsylvania Law Review</em> 121, No. 2 (Dec. 1972): 240.
