Justin Lindsay is a US national staff correspondent for JURIST, and a 2L at the University of Pittsburgh School of Law. He served 10 years as an Officer in the United States Army.
The US-based Anti-Defamation League (ADL) released a report last week identifying hundreds of American law enforcement, military, and state-level elected officials as members of the extremist group the “Oath Keepers”. The report was based on a data leak from the clandestine group DDoSecrets first released to the public in September of 2021. Using personal information provided to the Oath Keepers, the ADL was able to link the Oath Keepers to over 1,300 current and former law enforcement personnel, 128 current members of the military, and 81 individuals holding or running for public office at the state level.
The “Oath Keepers” are a large, loosely organized collection of right-wing extremists that believe the United States government is controlled by shadowy conspirators who intend to strip Americans of their rights. Among their beliefs are that President Biden is a Chinese puppet, President Obama planned a invasion of Texas, and Mexican drug cartels, Islamic terrorists and social workers are using gun violence and welfare to destabilize the country. The group focuses recruitment efforts on current and former law enforcement and military personnel, evidently with some success.
The presence of so many state-level officials within the organization is obviously a concern for the Biden administration, but the response options available to the federal government are limited. While the Department of Justice is currently prosecuting the national leader of the organization, Elmer Rhodes (Yale Law School, Class of 1998) for seditious conspiracy related to his action on and before January 6th, it is each state’s choice whether to disqualify individuals from office for enrollment in the Oath Keepers.
One might think a government official joining an anti-government organization would be an irreconcilable conflict of interest. But some would disagree. Also last week, the Pittsburgh Department of Public Safety ruled that a senior police officer would remain on the job despite his connections to the group. In addition to joining, the Lieutenant at issue had said he would use his position as a firearms instructor to recruit for the organization. Robust union protections prevent the city from sharing any details of its investigation with the public.
The US Constitution protects an individual’s freedom to associate without fear of retribution by the government, which would seem to support decisions by state and local officials to retain members of the organization. And the Oath Keeper’s goal of defending the Constitution seems noble. The devil is in the details, however. The group has sent armed vigilantes to monitor Black Lives Matter protests in violation of state law and the requests of law enforcement. They have patrolled election locations looking for “suspicious” voters. And many whole-heartedly believe President Biden is a Chinese “Manchurian candidate” bent on destroying the country and jailing or killing all who oppose him. While associating with a radical group is not an automatic disqualification from public service, living in a fantasy land unconnected from reality should be a mark against on the employee performance review.
As we have seen though, regulatory and disciplinary options may be limited. The Fraternal Order of Police, the US organization that represents most unionized police officers in this country, has negotiated protections that insulate its members from scrutiny by the public. Mere association with a radical group is not enough to condemn an individual, nor would we want it to be. And for some politicians membership in the Oath Keepers may burnish their credentials among conservatives. But the inability to prosecute does not mean the inability to monitor.
American law enforcement has a long history of covertly surveilling and disrupting organizations, from the investigations into Martin Luther King Jr., all the way into 2017 and “Black Identity Extremism” (later renamed to the politically correct “racially motivated extremists”). In 2017, the FBI attributed six separate and unrelated attacks to the Black Lives Matter movement, and began issuing advisories to law enforcement agencies across the country warning them of the dangers of an “increase in premeditated, retaliatory lethal violence against law enforcement”.
The FBI was zealous in its attempts to stomp out this alleged threat. In December 2017 for example, they arrested Rakum Balogun during a pre-dawn raid based on a comment he made on Facebook, his position as a co-founder of an all-Black gun owners club, and being featured in an Infowars video segment. After five months in jail, the FBI dropped all charges against Mr. Balogun, unable to find any illegal activity either with him or with his gun club.
The Biden Administration, the January 6th Committee, and the Democratic Party are driving home one of the essential tenets of the American justice system: we are all equal under law. Some may say Mr. Balogun’s denial of bail, the loss of his job and his subsequent homelessness were all unjustified by the unsubstantiated charges against him. The Department of Justice and former President Trump viewed it as an unfortunate but necessary sacrifice to keep America safe.
While the vast majority of Oath Keepers are surely law-abiding citizens exercising their First Amendment Right while seeking to preserve it with the Second, equal justice under law surely requires the same scrutiny as Mr. Balogun. Guilt by association is not accepted in American jurisprudence. But surely a true patriot, joining an organization known to have provided personal security for a convicted criminal suspected of working for a foreign intelligence agency, would be willing to prove his innocence. And surely the Department of Justice is willing to put the same effort into investigating right-wing organizations as they are for left-wing ones. To do anything less would let the terrorists win.
