Why the Oath Keepers guilty verdicts are bad news for others facing charges

A series of guilty verdicts in the Oath Keepers trial was a major win for the Justice Department (DOJ) that legal experts say is a warning sign to members of extremist groups still awaiting trial for their role in the storming of the Capitol on Jan. 6.

A jury on Tuesday delivered guilty verdicts on seditious conspiracy for the militia group’s leader Stewart Rhodes and Kelly Meggs, its Florida chapter leader, handing a victory to DOJ lawyers who have brought such charges rarely and with limited success.

While DOJ was not able to get a win on seditious conspiracy for each of the five defendants, all were found guilty of obstruction of an official proceeding, a crime that likewise carries a maximum 20-year prison sentence.

“What’s significant about this verdict is not just the seditious conspiracy convictions but the fact that all five defendants who were part of an unlawful paramilitary organization, who planned for and then executed an attack on the Capitol that involved obstructing Congress’s statutorily and constitutionally required obligation to count the Electoral College votes and certify a winner of the presidential election, every single one of them was found guilty for that, for obstructing that proceeding,” said Mary McCord, who served as the acting assistant attorney general for national security under the Obama administration.

“All five defendants were convicted of very serious crimes related to the Jan. 6 attack. No one got off; no one’s defenses were accepted.”

The convictions for Rhodes and Meggs come as a suite of other members of the Oath Keepers and the far-right Proud Boys, including its leader Enrique Tarrio, are set to face trial next month on seditious conspiracy charges.

The convictions of Rhodes and Meggs and three other Oath Keeper members – Kenneth Harrelson, Jessica Watkins and Thomas Caldwell – indicate a high risk of substantial prison time for the other defendants, something former prosecutors say could have those who have not plead guilty rethinking whether to head to trial.

“To the extent defendants are watching in those cases, they may be more likely to cooperate and enter a guilty plea, thinking that their hand is not as strong as perhaps they once thought it was,” said Barbara McQuade, a former U.S. Attorney in Michigan who brought seditious conspiracy charges against members of the Hutaree Militia.

Any shift to a guilty plea would be highly valuable to DOJ as it prosecutes those involved with efforts to illegally keep former President Trump in office.

“Cooperation is the currency of prosecutors, if you can get people to cooperate and tell you about the role of others who are higher up in a criminal organization, that can often point the way toward additional charges,” McQuade added, noting that members of the group were known to be in touch with Trump ally Roger Stone.

The verdicts on Tuesday included a smattering of not guilty findings on charges for conspiracy to impede members of Congress and conspiracy to block their proceedings. But legal experts largely see that mixed bag as a positive.

Brad Moss, a national security law expert, said it cuts against complaints from the defendants’ attorneys that they would not be able to get a fair trial in left-leaning Washington, D.C.

“Contrary to commentary from the Oath Keepers’ lawyers and certain political pundits, bringing the case in D.C. did not result in an across-the-board slam dunk for prosecutors,” he told The Hill by email.

“Several of the defendants were acquitted on the seditious conspiracy charges or other conspiracy charges, showing how discerning and serious the jurors (their political affiliations notwithstanding) took their job of applying the facts to the law,” Moss said.

McQuade also said the verdicts could strengthen DOJ’s position as attorneys for Rhodes have said he will likely challenge the conviction.

“I think it also makes this case stronger on appeal, because it shows that the jury didn’t just reflexively convict people based on a feeling or an impression, but they actually looked at the evidence,” she said.

Those outside the jury deliberation room say it’s tough to parse out why jurors only saw Rhodes’s and Meggs’s activity as justifying a seditious conspiracy conviction.

“The fact that the jurors acquitted other people suggests that the jury drew some distinctions of levels of involvement – we could imply that people at the leadership role, if we want use the word policy makers, they’re going to be held accountable,” said Bill Swor, a lawyer for one of the defendants in the Hutaree case. Others, he said, may have been deemed to be “followers.”

“Seditious conspiracy is a particular crime with some very specific requirements. Obstruction is no less serious. You can see that from the fact that Congress has said it’s equally punishing,” he added, pointing to both crimes’ 20 year maximum sentence.

McCord stressed that the need to reach a unanimous verdict makes it difficult to know to what extent DOJ failed to convince jurors of various charges.

McQuade said trying five people at once can also complicate deliberations.

“I have also seen this dynamic happen, where there is a mountain of evidence against one defendant, and the jury says, ‘Surely that is guilt beyond a reasonable doubt.’ And there is other evidence against other defendants that is substantial, that maybe even if standing alone they would have found was guilt beyond a reasonable doubt,” she said. “But because it pales in comparison to the defendant against whom there’s a mountain of evidence, they say, ‘Well, this is something less, so it doesn’t seem like they proved their case here.’ ”

“So sometimes, trying people together, can weaken a case against the less egregious offender, just because they look less egregious.”

Though the trials for other defendants will all have slightly different fact patterns, the Oath Keepers trial demonstrated that DOJ has a massive tranche of communications between members, including messages on encrypted apps as well as Facebook.

Rhodes’s conviction also shows jurors are willing to consider seditious conspiracy charges for those who never entered the Capitol building – an element in Tarrio’s case as he was arrested shortly before Jan. 6.

McCord said that’s in line with the law, as conspiracy charges require proving involvement in planning an illegal act.

“If they are the mastermind, they are the organizers, if they’re a co-conspirator with all the rest of the conspirators, they’re equally guilty,” she said.

Praising the work of DOJ prosecutors Tuesday, Attorney General Merrick Garland alluded to the coming trials.

“As the verdict of this case makes clear, the department will work tirelessly to hold accountable those responsible for crimes related to the attack on our democracy on Jan. 6,” he said.

McQuade said Monday’s verdict and the ongoing work is all important in the big picture.

“That’s how the system is supposed to work. Convictions are not just about holding people accountable for their crimes in the past but deterring people from committing those same crimes in the future.”

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