A jury’s willingness to convict two leaders of a far-right militia of seditious conspiracy for plotting to forcibly oppose the government is a major vindication of how the Justice Department is approaching its investigation into the efforts to disrupt President Joe Biden’s 2020 win.
As the Justice Department digs deeper into the conduct of former President Donald Trump and his inner circle, the conviction of two Oath Keepers leaders – as well as the conviction on another key charge brought against all five defendants – will be useful to building out a case around the plotting to overturn Trump’s loss that went beyond just the riot at the Capitol on January 6, 2021.
The seditious conspiracy charge has both a scant track record and a loaded political meaning – making it a gamble for the Justice Department to bring in the January 6 investigation.
There was stiff internal resistance to using the sedition charge against the Oath Keepers, CNN has reported, with Attorney General Merrick Garland finally being persuaded to sign off on it after investigators were able to flip several cooperators and build out the evidence around their case.
While three other alleged members of the Oath Keepers were acquitted on the seditious conspiracy charge, the overall result will undoubtedly put pressure on others to cooperate with the investigation. And the fact that the Justice Department can now describe what happened in the weeks after the 2020 election as sedition puts prosecutors – now being led by special counsel Jack Smith – on firmer ground to pursue those connected to the plan impede Congress’ certification of Biden’s win.
“The fact that the Justice Department established here that they could get a conviction on a seditious conspiracy charge is very big,” Elliot Williams, a former deputy assistant attorney general, said on CNN’s “Newsroom.”
“Beyond that, there is the macro, almost moral point, that an attack on America ended in a conviction here,” he added.
The verdict against Oath Keepers head Stewart Rhodes and one of his chief deputies, Kelly Meggs, is a rare successful prosecution on the seditious conspiracy charge. A handful of others associated with the group have pleaded guilty to it, but before the January 6 investigation, the count had been brought with little frequency – with the last federal case using the charge ending with a judge dismissing the count in 2012.
“The Justice Department is committed to holding accountable those criminally responsible for the assault on our democracy on January 6, 2021,” Garland said in a statement Tuesday. “The prosecutors and agents on this case worked tirelessly, with extraordinary skill, and in the best traditions of the Department of Justice.”
It remains to be seen whether investigators – as their probe stretches into Trump’s conduct and his knowledge of the schemes to disrupt the electoral count – will obtain sufficient evidence to spell out that type of conspiracy among the former president and his closest advisers.
Prosecutors would have to establish not just that Trump “thought that he won an election and was zealously advocating on his own behalf, but that he set out to break the law,” Williams said.
The criminal statute, which stems back to the start of the Civil War, prohibits conspiracies to “prevent, hinder, or delay the execution of any law of the United States.” The Justice Department made the case to the jury in the Oath Keepers case that Rhodes, Meggs and the other three defendants on trial “concocted a plan for armed rebellion to shatter a bedrock of American democracy.”
The jury acquitted those other three individuals – Kenneth Harrelson, Jessica Watkins and Thomas Caldwell – of the seditious conspiracy charge but convicted all five defendants of obstruction of an official proceeding.
Caldwell denied in court that he is a member of the Oath Keepers.
Members of the far-right group Oath Keepers are convicted of multiple charges in trial over the January 6 insurrection. The group’s leader is convicted of seditious conspiracy
In the Oath Keepers case, there was not any typed-out, formal agreement to stop lawmakers from validating that 2020 election, but rather an implied conspiracy that emerged in texts and social media posts, as well as the communications between the Oath Keepers that played out in real time as the Capitol was breached.
Seditious conspiracy prosecutions are “risky,” said Alan Rozenshtein, a former official in the Justice Department’s National Security Division, “because you’re hunting around for the defendants’ mental state.”
The experience the Justice Department has had in trying the conspiracy case against the Oath Keepers will be valuable in assessing how juries will view such a prosecution.
“With respect to, at least with this seditious conspiracy case here, with Stewart Rhodes, it was clear to the jury that there was extra level of intent – not just to do something bad, but to break the law, too,” Williams said.
Notably, Rhodes did not enter the Capitol on January 6, but prosecutors were able to show that he led the planning and the calls for violence that preceded the assault.
Part of what prosecutors sought to prove was that the criminal activity went beyond the violence of that day and that the conspiracy played out over several weeks, with talk of using force to respond to the election starting mere days after the votes were cast. The Justice Department framed the January 6 violence not as a long-sought goal of the Oath Keepers, but rather an opportunity they seized in the moment to further their larger goal of reversing Biden’s win.
The across-the-board conviction on the obstruction charge also helps bolster the theory that attacking the Capitol as lawmakers were in the process of validating the 2020 election results amounted to an unlawful disturbance of a government proceeding.
The use of that charge – which carries the same 20 year maximum that the seditious conspiracy count brings – will soon be scrutinized by a federal appeals court, in a challenge brought by another Capitol rioter. Meanwhile, a second set of Oath Keepers face a trial soon in a prosecution alleging seditious conspiracy, as do a collection of Proud Boys, another far-right group involved in the Capitol breach.
In the weeks-long trial, the Justice Department worked to prove how the group of largely ex-military members planned for an armed rebellion, and took action when the moment finally presented itself on January 6, going with the crowd to storm the Capitol.
Prosecutors largely relied on the group’s own alleged chat messages on encrypted apps and their planning in the lead up to January 6 – which Rhodes saw as a hard constitutional deadline to stop Biden from becoming president. The Justice Department also used testimony from several Oath Keepers members, some who have pleaded guilty to federal charges, to hammer the government’s case of what the militia was trying to accomplish.
How the Oath Keepers have recruited people in power
The defense attorneys contended the group never had a specific plan on January 6 and that Rhodes never instructed them to enter the Capitol. One cooperator called the plan “implicit” but no one testified the group had an organized, coordinated plan for what happened that day.
The defense argument appears to have resonated with the jury for the defendants who were acquitted on the seditious conspiracy charge. Watkins gave impassioned testimony expressing ignorance to the broader plan and regret about her role in it. Attorneys for Caldwell, meanwhile stressed that he was not a member of the Oath Keepers and wasn’t ingrained their plans for January 6.
Still the convictions of Rhodes and Meggs on sedition suggest that other aspects of DOJ’s approach were effective.
The prosecutors argued that the defendants believed that Trump could and should invoke the Insurrection Act, which – in Rhodes’s view – would allow the Oath Keepers to deploy into action as a deputized militia force on Trump’s behalf to stop the certification of the election and quell any riots from antifa or others. But the defendants were also prepared to go forward without Trump’s invocation, DOJ attorneys told the jury, especially as the certification vote approached and the Oath Keepers grew to suspect that Trump wouldn’t invoke the act.
The end verdict may not have been the complete slam dunk DOJ was hoping for. But it does show that juries are capable of analyzing a seditious conspiracy charge for individual defendants using specific sets of facts, which in turns boosts the argument that prosecutors should feel comfortable bringing the charge when the evidence calls for it.
“It’s real, it can be used and it can be used responsibly,” Rozenshtein said.