The Zealous Prosecutor and the Peaceful Protesters
Last week, DOJ trial attorney for the Civil Rights Division, Sanjay Patel could be seen in action inside the DC Federal District Court successfully prosecuting two elderly ladies and one middle aged Christian who had participated in a peaceful act of civil disobedience inside of an abortion clinic in 2020.
Mr. Patel serves as the Director of the Task Force on Violence Against Reproductive Health Care Providers, a working group organized under the leadership of the Assistant Attorney General for the Civil Rights Division of the Department of Justice. The Task Force includes DOJ attorneys, FBI agents, and other federal agencies.
The law under which the Task Force is organized, the Freedom of Access to Clinic Entrances (FACE) is supposed to focus on protecting not just abortion clinics, but also places of worship and pro-life pregnancy centers. Yet, since the Dobbs decision was leaked in May of 2020, at least 357 Catholic Churches have been attacked and the DOJ has opened 0 FACE Act cases in response.
The DOJ’s focus on prosecuting pro-lifers and ignoring widespread violence coming from President Biden’s political allies such as ANTIFA, BLM and radical pro-abortion group Jane’s revenge is evident from the official website of the DOJ’s Taskforce on Reproductive Health. Because the DOJ defines violence to include even non-physical contact, peaceful acts of civil disobedience are treated the same as violent shootings.
A Question of Motivation
In 2022, Mr. Patel, wrote an influential law review article titled “Face-Off with Anti-Abortion Extremism: Criminal Enforcement of 18 USC 241.”
The article is an instruction manual designed to help federal prosecutors go after pro-lifers with the maximum possible sentence, applying tools developed and justified in the prosecution of violent criminals and movements motivated by hate (such as the KKK) to the peaceful modern pro-life movement.
In his influential article, Mr. Patel states that “the linchpin to a successful FACE Act prosecution is motivation.” With an almost Orwellian glee, Patel describes how the defendant’s social media posts and “even bumperstickers” can be used to show intent.
Clearly, the government is motivated by a political animus against pro-lifers, but what about the motivation of the pro-lifers? What makes these peaceful citizens risk arrest and incarceration?
Unfortunately, the jury never got to hear this part of the story since Mr. Patel aggressively objected to any of the accused being able to speak to the jury about the motivation for their acts of peaceful civil disobedience.
The reason the pro-lifers protested that day was in fact the result of the government refusal to do anything to stop a murderous late-term abortionist in Washington DC. Abortionist Dr. Cesare Santangelo admitted on video over a decade ago to violating federal law by making sure no baby ever came out of his building alive, even if the baby happened to be born-alive after a failed abortion attempt.
See for yourself:
In early 2022, a decade after LiveAction’s undercover video caught the abortionist admitting to illegal partial birth abortions and infanticide, pro-life activists, at least one of whom had been at the 2020 protest inside the clinic, recovered the bodies of five late term babies murdered at the same DC abortion clinic.
Even after his on camera confession and the discovery of the five third trimester murdered babies, the Department of Justice, which is responsible for enforcing the federal ban on Partial Birth Abortion, has not taken any formal action against the abortionist.
Instead, the DOJ stepped-up its prosecution of pro-lifers who protested at the very same DC abortion clinic two years earlier, adding federal conspiracy charges to push the potential prison times north of a decade in federal prison.
During the trial, no mention was allowed to be made of the grisly murders taking place inside the abortion clinic and when the legendary rescuer, Joan Andrews Bell, a soft spoken gentle woman in her mid 70’s, tried to state what motivated her to put her body between the abortionist and his unborn victims, Mr. Patel jumped out of his seat and yelled out “objection!”
The judge always agreed with Mr. Patel and the prosecution, refusing to allow the defendants to make their case to the jury.
In fact, at the outset of the trial, U.S. District Court Judge Colleen Kollar-Kotelly, a Clinton appointee, settled the issue by telling the jury that this case was not about abortion, never mind the fact that the special prosecutor, Mr. Patel – who does not routinely try cases in the Federal District Court – was there to “Face-Off with Anti-Abortion Extremism.”
The jury deliberations were quick. One of the attorneys told a group of pro-lifers that he expected a same day decision, since the DC jury would want to go home for the weekend and not have to come back on Monday. One has to wonder whether the concept of being judged by a jury of one’s peers is any protection against an overzealous prosecutor, given the hyper-polarized state of the nation.
It certainly feels as if conservatives standing up for conservative causes are as likely to get a fair jury trial in Pyongyang as in Washington DC.
In the end, the attorney was right, all three defendants were quickly convicted by the DC Jury of violating the Freedom of Access to Clinic Entrances act (FACE), which prohibits acts of civil disobedience in or around abortion clinics or “reproductive health clinics” but more importantly, the defendants were found guilty of the government’s harshest charge, Conspiracy Against Rights.
Turning Misdemeanors Into Decades-Long Prison Sentences
While trespassing on a private facility by doing a peaceful sit-in would usually be prosecuted under state law as a misdemeanor trespass carrying minimal jail time and a fine, the FACE Act increased the penalties significantly from six months to three years, and if any physical injury results, then the protesters could face up to 10 years in prison.
The FACE Act has two separate intent elements: first, the defendant must act with the intent to injure, intimidate, or interfere; secondly, the defendant must have acted because the victim was seeking reproductive health services.
The FACE Act then assigns different penalties, classifying those where force is used with the intent to interfere with a person going to get “reproductive services” as felonies with multiple year sentences.
The use of force that catapults a misdemeanor FACE Act charge into a felony does not have to even involve contact since courts have defined the term “use of force” to mean as little as standing in front of a person or even slowing a car down in a driveway.
As if incarcerating pro-life grandmas and a peaceful middle aged man who didn’t even step inside the abortuary under the FACE Act was not enough for Mr. Patel and President Biden’s DOJ, they also charged these poor souls with the DOJ’s favorite new weapon for persecuting political enemies. The pro-lifers were all charged, and convicted, of engaging in a “Conspiracy Against Rights.”
As Mr. Patel wrote in his March of 2022 article in the DOJ Journal of Federal Law and Practice, “although criminal conspiracy offenses are usually charged under 18 U.S.C. § 371 … FACE Act offense should be charged under 18 U.S.C. § 241— conspiracy against rights.”
The reasons, according to Mr. Patel himself, have nothing to do with the intent of the legislators who passed the conspiracy laws – after all the “conspiracy against rights” act was passed after the Civil War to prevent extremely violent conspiracies that sought to deprive black Americans of their basic constitutional rights, like the right to vote. No, Mr. Patel gives three reasons prosecutors should apply the “conspiracy against rights” law against non-violent pro-lifers:
First, unlike a section 371 conspiracy, a section 241 conspiracy conviction is always a felony, even when the underlying substantive violation would be a misdemeanor. Second, section 241 violations are punishable by up to 10 years’ imprisonment; or up to life or the death penalty, if certain aggravators apply. And third, under section 241, the government is not required to prove an overt act or substantial step in furtherance of the agreement. Sanjay Patel Marc, 2022 article in the DOJ Journal of Federal Law and Practice
In other words, the DOJ is using a law meant to basically stop lynchings and extremely violent behavior as a weapon against these peaceful pro-lifers because that way they can get a felony conviction with extremely harsh sentences of over a decade in prison, and the kicker is that the government is not required to even prove that the accused even took any steps in furtherance of the conspiracy.
Just months after publishing his article titled “Face-Off with Anti-Abortion Extremism: Criminal Enforcement of 18 USC 241” Mr. Patel attempted to use the FACE Act to prosecute Mark Houck, a pro-life counselor whose son was being accosted by an abortion clinic escort to the point where the father was forced to push the abortion escort (deathscort) away from his son. The deathscort fell to the ground and proceeded to file charges. When the local lawsuit was tossed out of state courts in Pennsylvania, the DOJ came in to try their luck against Mr. Houck.
Fortunately for Mr. Houck, there was no charge of “Conspiracy Against Rights” and the federal jury handed Sanjay Patel a sound defeat by declaring Mr. Houck innocent of all charges.
Interestingly, while the DOJ’s press department issues press releases announcing the brining of charges against people like Mark Houck, they do not issue a press release when the defendants are found to be innocent of the charges.
The protesters of Dr. Santangelo’s late term abortion clinic were not as lucky as Mr. Houck.
Not only were they tried before a jury of the most leftist population in the country (approximately 95% of Washington DC is registered Democrat) but, because several of them coordinated before and during the protest, also known as a rescue, Mr. Patel had a green light to try out his novel “Conspiracy Against Rights” theory against them.
Politically Motivated Conspiracy Prosecutions
The Conspiracy Against Rights law was famously designed to help federal prosecutors go after the KKK and groups of people seeking to disenfranchise voters based on their race.
Conspiracy Against Rights charges used to be defined based on the original legislative intent of the statute and were constrained by Supreme Court rulings, as exemplified in the case of U.S. v. Cruikshank (1876). In the Cruikshank case, the Supreme Court concluded that the statute did not encompass unenumerated rights derived from natural law. However, over the subsequent decades, the court’s stance on the extent of Conspiracy Against Rights charges would fluctuate. Ultimately, in the Price case, the court ruled that §241 protected rights explicitly stated in the Constitution as well as those implied by it.
Because the language of the statute is rather vague, and the Supreme Court had given the green light to an expansive interpretation of the intent of the statute, it was only a matter of time before the law was weaponized for political purposes.
Section 241 - Conspiracy Against Rights If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured— They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death. This statute makes it a federal crime to conspire to deprive someone of their constitutional rights through threats, intimidation, or other means. Penalties can range from fines and imprisonment to life imprisonment or even the death penalty in cases where death results from the conspiracy.
Pro-lifers charged under the FACE Act and the Conspiracy Against Rights law for their part in a rescue in Tennessee made the logical argument that the Conspiracy Against Rights could not be applied to abortion given the fact that, after Dobbs, abortion is no longer a constitutional right. After all, how could law enforcement in Texas put people in jail for promoting abortion while the federal police in DC could put people in jail for trying to peacefully stop abortion?
The Tennesse Federal District Court in United States v. Gallagher retorted that the FACE Act grants people the right to access reproductive health clinics, which might include abortion clinics, but also includes contraceptives or any other broadly defined reproductive health service, without intimidation. Because the Conspiracy Against Rights charge can be based on infringements on the Constitutional or other federal rights, the judge in that case stated that prosecutors could continue to charge people with Conspiracy Against Rights in combination with the FACE Act, even though the so called right to abortion is no longer considered a federal right. With passage of the FACE Act, the right that is being infringed upon and causing pro-lifers to be charged with conspiracy against “rights” is the right to access certain services, not the services themselves.
One of the most shocking aspects of this combination of the charge of Conspiracy Against Rights, along with the FACE Act is, as Mr. Patel himself wrote in his law review article, that even when the underlying violation is a misdemeanor (trespass or misdemeanor FACE Act) the conspiracy will be treated as a felony.
Additionally, unlike other federal conspiracy laws, the Conspiracy Against Rights law does not require the defendant to actually commit an act in furtherance of the conspiracy, as long as the intent is there, the defendant can be found guilty.
Unfair Prosecutions Will Continue
Until the FACE Act is repealed or declared unconstitutional, it is clear that it will be used, in combination with the Conspiracy Against Rights act to weaponize the Department of Justice against political opponents of the overwhelmingly leftist bureaucracy of the DOJ and the FBI.
In the Gallagher case, another Clinton era federal judge, Aleta Trauger, ruled on pretrial motions that the court would not second guess Congress nor the charging decisions of the Executive no matter how unfair it seemed to charge someone with a felony conspiracy based upon a simple misdemeanor.
The defendants’ argument is not so much one based on any statutory language-which it is not-but on the fact that it simply seems, to them, unfair to consider it a felony to conspire to commit some misdemeanors. Whatever the moral persuasiveness of that thought, the defendants are asking this court to second-guess both the legislative decisions of Congress and the charging decisions of the Executive in a way that this court has no power to do.United States v. Gallagher, 2023
Congressman Chip Roy (R-TX) Introduces FACE Repeal
In response to this manifest injustice, pro-lifers have asked Congress to repeal the FACE Act. And last week Congressman Chip Roy of Texas stepped up to the plate introducing legislation to repeal the unconstitutional and weaponized Freedom of Access to Clinic Entrances (FACE) Act. Senator Mike Lee (R-UT) will lead companion legislation in the Senate.
Congressman Roy’s press release described the FACE Act as “a federal law designed to protect access to abortion facilities. However, President Biden’s weaponized Department of Justice has used the FACE Act to legally harass peaceful pro-life activists while simultaneously stonewalling good faith efforts by members of Congress to conduct even elementary oversight of the law.”
As of the publishing of this article, H.R.5577 – FACE Act Repeal Act of 2023 had 26 co-sponsors.
Please contact your legislators today and ask them to support HR 5577 the FACE Act Repeal Act of 2023.