Outside the Beltway

Oath Keeper Founder Guilty of ‘Seditious Conspiracy’

A watershed moment in the prosecutions of the Capitol Rioters.

James Joyner · Wednesday, November 30, 2022 · 7 comments

WaPo (“Oath Keepers founder Stewart Rhodes guilty of Jan. 6 seditious conspiracy“):

A federal jury on Tuesday convicted Oath Keepers founder Stewart Rhodes and a top deputy of seditious conspiracy for leading a months-long plot to unleash political violence to prevent the inauguration of President Biden, culminating in the Jan. 6, 2021, attack on the Capitol.

The panel of seven men and five women deliberated for three days before finding Rhodes and lead Florida Oath Keeper Kelly Meggs guilty of conspiring to oppose by force the lawful transition of presidential power. But three other associates were not convicted of the historically rare and politically freighted sedition count. All five were convicted of obstructing Congress as it met to confirm the results of the 2020 election. Both offenses are punishable by up to 20 years in prison.

[…]

Rhodes and his co-defendants were the first accused of seditious conspiracy and the first to face trial and be convicted on any conspiracy charge to date in the massive Jan. 6 investigation. He is the highest-profile figure to face trial in connection with rioting by angry Trump supporters who injured scores of officers, ransacked offices and forced lawmakers to evacuate the U.S. Capitol.

Rhodes and followers, dressed in combat-style gear, converged on the Capitol after staging an “arsenal” of weapons at nearby hotels, ready to take up arms at Rhodes’s direction in an attack on the “bedrock of democracy,” the government charged. Rhodes’s defense said he and co-defendants came to Washington as bodyguards and peacekeepers, bringing firearms only in case Trump met their demand to mobilize private militia to stop Biden from becoming president.

Analysts called the outcome a vindication for the Justice Department.

“The jury’s verdict on seditious conspiracy confirms that January 6, 2021, was not just ‘legitimate political discourse’ or a peaceful protest that got out of hand. This was a planned, organized, violent assault on the lawful authority of the U.S. government and the peaceful transfer of power,” said Randall D. Eliason, a former federal prosecutor who teaches law at George Washington University.

“Now the only remaining question is how much higher did those plans go, and who else might be held criminally responsible,” Eliason said.

In a statement, Attorney General Merrick Garland hailed the verdict and praised prosecutors and agents on the case.

“Today the jury returned a verdict convicting all defendants of criminal conduct, including two Oath Keepers leaders for seditious conspiracy against the United States,” Garland said. “The Justice Department is committed to holding accountable those criminally responsible for the assault on our democracy on January 6, 2021.”

The verdict in Rhodes’s case likely will be taken as a bellwether for two remaining Jan. 6 seditious conspiracy trials set for December against five other Oath Keepers and leaders of the Proud Boys, including the longtime chairman Henry ‘Enrique’ Tarrio. Both Rhodes and Tarrio are highly visible leaders of the alt-right or far-right anti-government movements, and were highlighted at hearings probing the attack earlier this year by the House Jan. 6 committee.

This outcome was painfully slow in coming but strikes me as American justice at its finest.

It has been my longstanding view, once the emotions of our nation’s seat of government being the site of a riot cooled down, that what I have dubbed “the Capitol Riot” was an interlocking series of events. Those inside the Capitol that day ranged Trump supporters who came in well after the initial mayhem to take selfies to folks swept up in the fervor of a mob to seditionists who came to kill Mike Pence and others.

Our system has done a remarkably good job of distinguishing between these groups and punishing them accordingly. Naturally, because of the way painstakingly building evidence works, the lower-level offenders have been processed more swiftly, mostly receiving very light sentences. Those who actually committed violence and/or were leaders in the movement were, quite rightly, punished more severely. Now, finally, we’re getting to the worst of the worst. Rhodes, Meggs, and Tarrio should get the maximum penalty permissible under the law.

As Roger Parloff explains in some detail in a Lawfare essay written before the verdict, seditious conspiracy is next to impossible to prove.

If seditious rhetoric alone were sufficient to prove seditious conspiracy, the prosecution against Rhodes and four compadres now playing out in U.S. District Court in Washington, D.C., would be a slam dunk. For at least two months, all of these defendants engaged in or endorsed over-the-top, written and oral threats or promises to “oppose by force the authority” of the United States or to use “force to prevent, hinder and delay the execution of [the] law[s] of the United States” governing  the transfer of presidential power—the two clauses of the seditious conspiracy statute under which they have been indicted. Then, during the Jan. 6 insurrection, three of these defendants—along with about 17 other Oath Keepers indicted in related cases—ascended the east Capitol steps in “stack formation” (each with his or her hand on the shoulder of the cadre ahead) in two successive waves and penetrated the building where Congress, in joint session, was due to certify Biden’s election. The spectacle of these seemingly disciplined troops, kitted out in full battle rattle—camo uniforms, helmets, tactical vests, tactical goggles, tactical gloves, and, in some cases, anti-ballistic plates, bear spray, and paracord—became perhaps the most indelible emblem of the insurrection: a coordinated, militaristic assault on our democracy.  

So what’s the defense?

In two words: No plan. 

Despite having sifted through thousands of Signal, Facebook, and text messages extracted from dozens of seized phones; having been provided by an informant with a recording of one of their secret GoToMeetings (a videoconferencing app); having debriefed scores of witnesses, including seven Oath Keepers who pleaded guilty—and, amongst those, three who specifically pleaded guilty to seditious conspiracy—the government never produced evidence of any Oath Keeper plan to breach the Capitol on Jan. 6 or, for that matter, any concrete plan of any kind laying out precisely how they would block Biden from taking power.

In fact, two of the government’s own key witnesses—Oath Keepers who had pleaded guilty to conspiracy—each acknowledged that they knew of no plan to storm the Capitol on Jan. 6 and that they’d received no orders from either Rhodes or any of his lieutenants to do so. On cross-examination, one of them, Graydon Young, even described his decision to enter the building that day as “spontaneous.”

Because there was no concrete plan, defendants have been able to argue—not without force, in my view—that Rhodes’s and the others’ earlier rhetoric was no more than that: rhetoric. It was hyperbole; bombast; bravado; locker-room talk; or venting. You know, kvetching. One defense witness claimed it was as harmless as the smack talk you might hear from old codgers sounding off in a barber shop—though these particular codgers had an arsenal of AR-15s across the river from the barber shop in question.

The government did not deny the absence of a plan. It argued, instead: So what?

There’s a lot more there. Obviously, the jury bought the government’s argument, at least for the two ringleaders. We’ll see whether it holds up on appeal. The charge is so novel that there’s not much precedent to go on.

Now that we have convicted two men—and are likely to convict others—of seditious conspiracy, it’s much more feasible to charge President Trump and perhaps some of his top lieutenants with related crimes. We shall see but, alas, I don’t expect it to happen quickly if it happens at all.