Oregon Militia Members Face Federal Criminal Conspiracy Charge

By Ephrat Livni, Esq. on February 01, 2016 | Last updated on March 21, 2019

Freedom fighters often pay for their struggles with prison time, and this is certainly true for the crew that occupied the Malheur wildlife refuge in Oregon last month in a standoff against the federal government. The Oregon militia members were protesting the imprisonment of two men prosecuted for fires on national parklands. Now they too face prosecution.

The felony charge they face is conspiracy to impede federal officers from discharging official duties through the use of force, intimidation, or threats. This could result in fines and six years in prison, and according to an op-ed in the Los Angeles Times, the government was very careful in choosing the charge.

A Rarely Used Statute

The conspiracy charge lodged against the militia members is one that comes from a rarely used federal statute, writes Ken White, a former federal prosecutor and criminal defense attorney. He explains that the choice was a shrewd move for two reasons.

First, although White says the statute the fed are relying on is "not one of theJustice Department's big guns ... the virtue of such conspiracy charges are their flexibility." He writes in LA Times, "The government need prove only that two or more of the defendants agreed to prevent some federal employee from discharging his or her duty by force, intimidation or threat. Prosecutors don't have to prove they were successful."

Second, the defendants themselves have made the case easy to prove. Although historically conspiracies were difficult to demonstrate and convictions hinged on circumstantial evidence, today we make our intentions clear using technology.

According to White, the government's complaint is astoundingly compelling because militia members publicized their intentions using the Internet and social networks. If you doubt that the militia members meant to thwart the government, then you can check for yourself on the YouTube videos and Facebook posts they provided.

"The defendants have a right to indictment by grand jury within a few weeks, and that indictment may include more charges and more creative theories," writes White. "For now, though, it seems the government is taking a low-key approach."

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