DOJ raises stakes with rarely used sedition charges for Oath Keepers

The seditious conspiracy charges brought by the Justice Department on Thursday against the leader of the Oath Keepers and other members of the right-wing group signal the government is prepared to take on an ambitious fight to show that they joined the Jan. 6, 2021, attack as part of a coordinated effort to deny President Biden the White House.

The indictment contains the first sedition charges that have been brought following the riot and mark a significant escalation in prosecutors' efforts by drawing a connection between the physical acts of mayhem that day and the broader effort by former President Trump's supporters to obstruct Biden from taking office.

The arrest of Stewart Rhodes, the founder of the far-right militia group, followed criticism that the Justice Department, despite filing hundreds of charges, was failing to go after major actors behind the attack.

The criminal statute for seditious conspiracy covers plots to overthrow or attack the government or use force to prevent the execution of U.S. laws. The Justice Department's case against the leaders of the Oath Keepers alleges that they conspired "to oppose by force the execution of the laws governing the transfer of presidential power."

"It's ​​significant because they are so rarely used, and that reflects the gravity of the charges and the difficulties of proving it in court," said Bruce Hoffman, a counterterrorism and homeland security expert with the Council on Foreign Relations.

The charges could help combat a narrative from some Republican lawmakers, he said, that the attack was carried out as people were swept up in moment, falling short of an act of terrorism.

"Until now, the 700 people who were indicted were indicted as individuals, which played into an argument that we've heard members of Congress that downplayed the significance and the consequences of Jan. 6," he said.

"When you're talking about seditious conspiracy, you're talking about something that's planned, premeditated and purposeful. It's not that all of a sudden these people are angered and spontaneously or serendipitously descended on the Capitol. ... It's elevating this entire Jan. 6 insurrection onto a different level where it becomes very difficult to deny it was an insurrection. It underscores how serious it was and puts it in the realm of terrorism," Hoffman said.

The indictment from the Justice Department details how a group of 19 members wore paramilitary gear and used a military "stack" formation to enter the Capitol. It also details how Rhodes spent thousands of dollars on weapons before and after the riot and coordinated with a "quick reaction force" in Virginia that was awaiting word on whether to bring weapons into Washington, D.C.

Prosecutors say that Rhodes and his alleged co-conspirators spoke often in the weeks between the 2020 election and Jan. 6 about fighting to prevent Biden from taking office.

In one November 2020 encrypted group message to other Oath Keepers leaders, Rhodes wrote, "We aren't getting through this without a civil war. Too late for that. Prepare your mind, body, spirit."

Seditious conspiracy prosecutions have been rare in recent years, and in the early 20th century, they were primarily brought against dissidents such as socialists, anarchists and anti-war activists.

Federal prosecutors have a mixed record of success in the more recent seditious conspiracy cases, indicating that such charges can be hard to prove and can be complicated by free speech challenges.

In 1995, a federal jury convicted Omar Abdel Rahman, an Islamic cleric known as the "Blind Sheikh" who was linked to the World Trade Center bombing two years prior, of seditious conspiracy and other charges for various plots to attack sites in New York City. The decision to bring the charges had been seen as a gamble at the time, given the few convictions prosecutors had managed to secure under the statute.

In 2010, federal prosecutors in Michigan brought the charge against members of the right-wing Hutaree militia group for scheming to kill a police officer and then assault the law enforcement funeral procession in a plot aimed at inspiring a nationwide uprising against the government. But a federal judge in 2012 dismissed the counts from the indictment, saying that prosecutors had failed to show sufficient evidence that the defendants had been engaging in an actual plot rather than expressing strong desires to attack and kill law enforcement officers.

"The Government's case is built largely of circumstantial evidence," U.S. District Judge Victoria Roberts wrote in a decision at the time. "While this evidence could certainly lead a rational factfinder to conclude that 'something fishy' was going on, it does not prove beyond a reasonable doubt that Defendants reached a concrete agreement to forcibly oppose the United States Government."

Experts told The Hill the challenge of winning seditious conspiracy cases is more about perception than meeting the legal requirements of the statute.

Barbara McQuade, a former U.S. attorney in Michigan who prosecuted the Hutaree case, said in recent years it's been difficult to convince jurors that militia groups actually pose a threat, even though the statute requires showing only an intent to carry out an attack regardless of whether such groups stood a realistic chance of successfully overthrowing the government.

McQuade said an obstacle in the case was that the group was viewed as "a bunch of goofy knuckleheads who like to blow stuff up in the woods and they could never possibly attack the United States."

But the attack on the Capitol and the increased public attention on domestic extremists in recent years could make it easier for prosecutors to convince jurors of the potential threat posed by militia groups.

"The technical elements of law are pretty easy to satisfy," she said. "For people who are law-abiding American citizens, the notion that these guys think that they're going to start a civil war by having an attack just sounds ridiculous. I think it seems less ridiculous when we saw what happened on Jan. 6."

The indictment against Rhodes that was released Thursday indicates that prosecutors are confident they can show that the defendants were not just using empty rhetoric when they spoke with each other about carrying out violence in order to stop the presidential transition.

Mary McCord, who served as the acting head of the Justice Department's National Security Division during the Obama administration and as a federal prosecutor in the U.S. attorney's office in D.C. for nearly 20 years, said that the challenge in prosecuting seditious conspiracy cases lies partly in distinguishing between constitutionally protected anti-government rhetoric and communications that lay out a concerted plot against the government.

"If you are actually prosecuting a conspiracy case involving a conspiracy that was thwarted, that never got to go to fruition, you always have to convince the jury and the judge, as a threshold matter, that the planning was concrete enough, that it wasn't just fantasy, that it wasn't just hyperbole, that there really was a plan to engage in whatever the object of the conspiracy was," McCord said. "The reason I think that's less of an issue here in terms of difficulty is they didn't just talk about it and then not do it. They talked about it and did it."