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Expert: Why the 'snake oil' legal strategy of local Jan. 6 cases probably won’t work


Local couple Michael and Shawndale Chilcoat of Mercer County are facing criminal charges for allegedly breaking into the capitol building and breaching the Senate chamber during the January 6, 2021 attacks in Washington, D.C. The Chilcoats are now both asking the judge in their case if they can represent themselves in the proceedings. They are trying to use what experts call a Sovereign Citizen defense as their legal strategy. WYSO reached out to the Chilcoats and did not get a response by publication.

To learn more about this strategy, Reporter Chris Welter spoke with Seattle-based attorney and Sovereign Citizen Movement expert Caesar Kalinowski IV about what the movement is, its connection to conspiratorial thinking, and why it probably won’t work.

Transcript (edited lightly for length and clarity)

Caesar Kalinowski: The sovereign citizen movement is sort of a pseudo-legal movement that claims that the federal government in general can't force you to be part of its jurisdiction unless you consent to that jurisdiction. The notion is that you are born as a sovereign and you didn't consent to be a part of the United States, that you were born as a person under natural law, therefore, you can reject the notion of the authority of the federal government over you. 

The problem is that the idea comes from a misreading of the 14th Amendment and from a lot of pre-Civil War legal cases. 

In fact, by being born within a nation or even by being within the territorial confines of a nation, you're subject to that nation's jurisdiction, regardless of whether you like it, consent to it, or otherwise. 

So by misreading some things taken out of context from statutes and from various court cases, people sort of pieced together this idea that they can reject the notion of authority, but it's simply not based in the Constitution or any law. 

Chris Welter: The Chilcoats are not the first January 6 defendants to use this sovereign citizen defense. Can you talk a little bit about the connection between the sovereign citizen theory and the January 6 defendants?

Caesar: The reason that the sovereign citizen movement has picked up renewed steam in the last couple of years is because of the economic recession in 2008 and more recently with Donald Trump being an outside candidate and an outside president. Individuals are looking for a means to reject what they feel is the government not doing its job or the government being too pervasive in their life. I think for a lot of the individuals that were out there on January 6th, whether it's the QAnon theory, whether it's the sovereign citizen movement, whether it's the election denialism, they want to find a way to push back against the notion that the federal government can control them or even have the authority to control them. They are trying to do that by invalidating, whether it's the election or invalidating the entire notion that Joe Biden is elected. The sovereign citizen movement is one example of that.

So it’s been used for a number of years by defendants in cases trying to reject the jurisdiction and authority of the federal government. It never works, but it's not surprising that individuals that have these ideologies are trying to use it in this context to get out of their charges or get out of the jurisdiction of the federal government in these cases.

Chris: So you just said that the sovereign citizen movement has never worked in the courts and that courts are able to throw out those cases because they are frivolous. But can you talk about why the sovereign citizen legal defense does have a very real effect on the efficiency of the courts and how it can be kind of a pain for legal professionals?

Caesar: One of the most basic reasons is that the language that they use doesn't really track with the language of courts or the Constitution. So it's sort of what I liken to a snake oil salesman where they take some bits and pieces from a certain case or a certain statute and they inscribe their own meaning to it. Oftentimes their meaning is based on a layman's understanding of what a word could mean or what the Constitution does or doesn't do. For people trained in the law, it's really tough to untrain yourself to understand what they're trying to say. 

Another difficult part is that like any snake oil, there's not necessarily one single recipe for that snake oil. In fact, part of the reason why the sovereign citizen legal theory has continued is that when one area or one claim gets shut down, they sort of make up a new one or find support for a new version to get at that same underlying theory that is again based on a misreading of a case or a misreading of a statute or some other claim that isn't really based on the law. There's no good way to pin down what they're saying fundamentally or practically speaking. 

One of the other biggest difficulties is the fact that they file so many documents—they're long and they're verbose and they don't really relate to much of anything. They don't follow standard rules of procedure. They can sometimes be filings against judges, prosecutors, or sheriffs—even liens against their homes. 

Those filings can just be too difficult to deal with and as a result, that's why a lot of courts just simply say it's frivolous, it's meritless, and they don't walk through each of the arguments and why they are meritless because it's just simply too much paperwork to deal with to try to break down these very confusing misunderstandings of the law. 

Note: Kalinowski provides legal services to NPR. 

Chris Welter is a reporter and corps member with Report for America, a national service program that places journalists in local newsrooms.

Chris Welter is an Environmental Reporter at WYSO through Report for America. In 2017, he completed the radio training program at WYSO's Eichelberger Center for Community Voices. Prior to joining the team at WYSO, he did boots-on-the-ground conservation work and policy research on land-use issues in southwest Ohio as a Miller Fellow with the Tecumseh Land Trust.