Case against Oath Keepers hinges on rare use of seditious conspiracy charges
- Oops!Something went wrong.Please try again later.
In the weeks after the 2020 election, Stewart Rhodes, founder and leader of the far-right Oath Keepers militia group, had some stark advice for then-President Donald Trump: Invoke a 19th century law known as the Insurrection Act and call out the National Guard to crack down on “domestic traitors” and reverse the “fraudulent” victory of Joe Biden.
“The very survival of our nation as a free Constitutional Republic hangs in the balance,” Rhodes and his domestic partner Kellye SoRelle wrote in an open letter to Trump.
Rhodes’s activities in the run-up to Jan. 6, 2021, riot at the U.S. Capitol — including his purchase of more than $20,000 worth of firearms that he brought to a motel in the Washington area — have now landed him in a D.C. jail, where he awaits trial on the most far-reaching and significant of the Justice Department cases brought in the wake of the effort to block the certification of the Electoral College vote in the presidential election.
Justice Department prosecutors have charged Rhodes, a former U.S. Army paratrooper who graduated from Yale Law School in 2009, and 10 of his fellow Oath Keepers with participating in a “seditious conspiracy” in their efforts to overturn the election results. Rhodes and nine other defendants have pleaded not guilty to the charges; one defendant has pleaded guilty.
The use of the seditious conspiracy law, which also dates back to the 19th century, was an audacious move by the department; the statute has rarely been invoked, in part because of civil liberties concerns. One of the few modern occasions where such charges were used to prosecute alleged domestic terrorists was when four militants, demanding independence for Puerto Rico from the U.S., shot up the House of Representatives in 1954, wounding several members of Congress. The shooters and more than a dozen co-conspirators were subsequently convicted of seditious conspiracy, and the leader of the militant group that staged the attack spent 35 years in prison. Prosecutors also obtained seditious conspiracy convictions against Omar Abdel-Rahman, the radical Egyptian imam known as the “Blind sheikh,” and nine others for allegedly plotting to blow up the United Nations headquarters in New York City, as well as bridges and tunnels there.
The last time the DOJ sought to use the law was against members of the Hutaree, a far-right Michigan militia whose members allegedly plotted in 2010 to kill a police officer and then to bomb his funeral. The seditious conspiracy charges in the case were thrown out by a federal judge who viewed them as an overreach. Three members of the Hutaree ultimately pleaded guilty to possession of a machine gun and were sentenced to time served.
But some legal experts say the evidence that Rhodes and his confederates were conspiring to commit violence on Jan. 6 is so damning that it could justify charges of sedition in this case.
To obtain a conviction, prosecutors do not need to prove that the defendants actually committed an overt act of sedition — such as attacking the Capitol in an organized fashion with an intent “to overthrow” the government or to “delay the execution of any law of the United States.” But they do need to prove that two or more individuals did plot together to engage in such an act.
“The government has to prove that each individual participated with conspiratorial intent,” Jimmy Gurule, a Notre Dame University law professor who served as the U.S. Treasury Department’s top law enforcement official during the administration of former President George W. Bush, told Yahoo News. Gurule said that when such cases are brought they are based mainly on indirect and circumstantial evidence. Video footage shows members of the Oath Keepers, including many but not all of the individuals facing seditious conspiracy charges, joining the “stack formation” that drove itself up the steps on the east side of the Capitol building on Jan. 6. Federal investigators say the accused Oath Keepers also communicated with one other via Signal, a strongly encrypted web app, allegedly to avoid detection from law enforcement authorities. This is the kind of circumstantial evidence which prosecutors are likely to present in court, Gurule said.
A conviction on seditious conspiracy charges carries a maximum 20-year prison term. Rhodes and nine other alleged Oath Keepers are the only riot defendants to be prosecuted so far on such charges, which Harvard Law professor Lawrence Tribe and former federal prosecutor Dennis Aftergut have described as "treason's sibling."
Enrique Tarrio, leader of the Proud Boys, and others in that militia group who participated in the riot also face conspiracy charges carrying potential 20-year prison sentences, but in their cases sedition is not explicitly alleged. In early April, Charles Donohoe, an alleged Proud Boys leader from North Carolina, pleaded guilty to conspiracy charges and agreed to cooperate with investigators. According to prosecutors, in December 2020, Tarrio named Donohoe as the head of a new Proud Boys chapter called the Ministry of Self Defense. The mission of the new chapter, prosecutors allege, was to plan Proud Boys rallies, including the group’s activities in Washington on Jan. 6.
The fact that no sedition charges have so far been filed against members of the Proud Boys, or against members of other far-right groups such as the Three Percenters, leaves open the question of how aggressively Attorney General Merrick Garland is prepared to use the statute.
The case against Rhodes has taken on added importance because, in the view of some legal experts, it also holds the potential for even broader charges that could ultimately be used against aides to Trump and even against Trump himself.
In their initial evaluation of how to proceed with cases related to the Jan. 6 riot, federal prosecutors and the FBI took a cautious approach to filing criminal charges. From the outset, however, they looked at what role Trump and key supporters or rally organizers, such as Roger Stone and Ali Alexander, might have played in plotting the violent protest at the Capitol. At least as far as Oath Keepers are concerned, prosecutors initially found that there was no top-led, grand conspiracy.
“Ninety to 95% of these are one-off cases,” a former senior law enforcement official with knowledge of the investigation told Reuters last summer. “Then you have 5%, maybe, of these militia groups that were more closely organized. But there was no grand scheme with Roger Stone and Alex Jones and all of these people to storm the Capitol and take hostages."
Multiple federal officials involved in the investigation told Yahoo News that the FBI believed that cells of protesters, including followers of the Oath Keepers and Proud Boys, had aimed to break into the Capitol, but found little evidence that the groups had serious plans about what to do if they made it inside, the sources said.
Rhodes’s lawyers have denied that their client and other members of the Oath Keepers had advance plans to attack the Capitol. “They were not there to storm the Capitol, to stop the certification, to take over the government,” the lawyers argued in a brief. “They were waiting for President Trump to invoke the Insurrection Act. He did not, so Rhodes and the others did nothing.”
But more recent revelations from the investigations into the Jan. 6 riot appear to suggest there was coordination among members of the Oath Keepers and other groups leading up to the riot. In February, Reuters reported that two witnesses had told the FBI about a Jan. 5 meeting in a garage in downtown D.C. between Rhodes, Proud Boys leader Enrique Tarrio and other far-right leaders, though the substance of the meeting is currently unclear.
Two days after the riot occurred, the Oath Keepers appeared to suspect that federal agents were after Rhodes and his associates. On Jan. 8, one of their lawyers warned a Signal group that included Rhodes, "YOU ALL NEED TO DELETE ANY OF YOUR COMMENTS REGARDING WHO DID WHAT," according to federal investigators.
_____
