Oath Keepers Charged with Seditious Conspiracy
A year after the Capitol riot, DOJ is coming after the most violent perpetrators.
A little over a week ago, on the one-year anniversary of the Capitol riot, I addressed the right-wing talking point, “If It Was an Insurrection, Why Hasn’t Anyone Been Charged with ‘Insurrection’?” Mostly, I argued, we often use legal terms of art differently in ordinary speech than they exist in the law. Partly, though, I noted,
There are DOJ officials who have been quoted in the press as saying that seditious conspiracy charges are justifiable in some instances. And they may well be.
The legal process, alas, is slow. We have processed hundreds of cases but, for the most part they’re the simple ones: the simple assaults, simple trespass, and the like. They’re pleading out and getting, with rare exception, mild sentences. A handful have gotten significant prison time.
[…]
I suspect that we’ll see very serious criminal charges forthcoming against the worst of the worst: the Proud Boys, Oath Keepers, and other “militia” types intent on violence. Maybe we’ll see sedition charges. I doubt we’ll see insurrection charges; they’re just too hard to prove.
Well, it didn’t take long for this to play out.
Yesterday afternoon, the Justice Department issued a release titled “Leader of Oath Keepers and 10 Other Individuals Indicted in Federal Court for Seditious Conspiracy and Other Offenses Related to U.S. Capitol Breach; Eight Others Facing Charges in Two Related Cases.”
A federal grand jury in the District of Columbia returned an indictment yesterday, which was unsealed today, charging 11 defendants with seditious conspiracy and other charges for crimes related to the breach of the U.S. Capitol on Jan. 6, which disrupted a joint session of the U.S. Congress that was in the process of ascertaining and counting the electoral votes related to the presidential election.
According to court documents, Elmer Stewart Rhodes III, 56, of Granbury, Texas, who is the founder and leader of the Oath Keepers; and Edward Vallejo, 63, of Phoenix, Arizona, are being charged for the first time in connection with events leading up to and including Jan. 6. Rhodes was arrested this morning in Little Elm, Texas, and Vallejo was arrested this morning in Phoenix.
In addition to Rhodes and Vallejo, those named in the indictment include nine previously charged defendants: Thomas Caldwell, 67, of Berryville, Virginia; Joseph Hackett, 51, of Sarasota, Florida; Kenneth Harrelson, 41, of Titusville, Florida; Joshua James, 34, of Arab, Alabama; Kelly Meggs, 52, of Dunnellon, Florida; Roberto Minuta, 37, of Prosper, Texas; David Moerschel, 44, of Punta Gorda, Florida; Brian Ulrich, 44, of Guyton, Georgia and Jessica Watkins, 39, of Woodstock, Ohio. In addition to the earlier charges filed against them, they now face additional counts for seditious conspiracy and other offenses.
Eight other individuals affiliated with the Oath Keepers, all previously charged in the investigation, remain as defendants in two related cases. All defendants – except Rhodes and Vallejo – previously were charged in a superseding indictment. The superseding indictment has now effectively been split into three parts: the 11-defendant seditious conspiracy case, a seven-defendant original case, and a third case against one of the previously charged defendants.
In one of the related cases, the original superseding indictment, charges remain pending against James Beeks, 49, of Orlando, Florida; Donovan Crowl, 51, of Cable, Ohio; William Isaacs, 22, of Kissimmee, Florida; Connie Meggs, 60, of Dunnellon, Florida; Sandra Parker, 63, of Morrow, Ohio; Bernie Parker, 71, of Morrow, Ohio, and Laura Steele, 53, of Thomasville, North Carolina. The other case charges Jonathan Walden, 57, of Birmingham, Alabama.
The three indictments collectively charge all 19 defendants with corruptly obstructing an official proceeding. Eighteen of the 19 defendants – the exception is Walden – are charged with conspiring to obstruct an official proceeding and conspiring to prevent an officer of the United States from discharging a duty. Eleven of the 19 defendants are charged with seditious conspiracy. Some of the defendants are also facing other related charges.
As alleged in the indictments, the Oath Keepers are a large but loosely organized collection of individuals, some of whom are associated with militias. Though the Oath Keepers will accept anyone as members, they explicitly focus on recruiting current and former military, law enforcement and first-responder personnel. Members and affiliates of the Oath Keepers were among the individuals and groups who forcibly entered the Capitol on Jan. 6, 2021.
The seditious conspiracy indictment alleges that, following the Nov. 3, 2020, presidential election, Rhodes conspired with his co-defendants and others to oppose by force the execution of the laws governing the transfer of presidential power by Jan. 20, 2021. Beginning in late December 2020, via encrypted and private communications applications, Rhodes and various co-conspirators coordinated and planned to travel to Washington, D.C., on or around Jan. 6, 2021, the date of the certification of the electoral college vote, the indictment alleges. Rhodes and several co-conspirators made plans to bring weapons to the area to support the operation. The co-conspirators then traveled across the country to the Washington, D.C., metropolitan area in early January 2021.
According to the seditious conspiracy indictment, the defendants conspired through a variety of manners and means, including: organizing into teams that were prepared and willing to use force and to transport firearms and ammunition into Washington, D.C.; recruiting members and affiliates to participate in the conspiracy; organizing trainings to teach and learn paramilitary combat tactics; bringing and contributing paramilitary gear, weapons and supplies – including knives, batons, camouflaged combat uniforms, tactical vests with plates, helmets, eye protection and radio equipment – to the Capitol grounds; breaching and attempting to take control of the Capitol grounds and building on Jan. 6, 2021, in an effort to prevent, hinder and delay the certification of the electoral college vote; using force against law enforcement officers while inside the Capitol on Jan. 6, 2021; continuing to plot, after Jan. 6, 2021, to oppose by force the lawful transfer of presidential power, and using websites, social media, text messaging and encrypted messaging applications to communicate with co-conspirators and others.
The Washington Post (“Oath Keepers founder Stewart Rhodes charged with seditious conspiracy in Jan. 6 Capitol riot“) adds,
The 56-year-old, who was at the Capitol that day but has said he did not enter the building, is the most high-profile person charged in the investigation so far. The indictment filed against Rhodes and 10 other Oath Keepers or associates marks the first time the historically rare charge of seditious conspiracy has been leveled in connection with the wide-ranging Jan. 6 probe.
[…]
The most damaging evidence in the 48-page, 17-count indictment comes from the defendants’ own words, often shared in the encrypted messaging app Signal. The indictment alleges that a core group of Rhodes’s most strident adherents planned for and participated in obstructing Congress on the day lawmakers certified Biden’s 2020 election victory.
[…]
According to the indictment, the plotting for violence began just after Biden won the election.
On Nov. 5, Rhodes told an invitation-only message group of Oath Keepers leaders: “We aren’t getting through this without a civil war. Too late for that. Prepare your mind, body, spirit,” Five days later, he published a call to action titled, “WHAT WE THE PEOPLE MUST DO,” suggesting his organization follow the example of an anti-government uprising in Serbia, the court filing says.
On Christmas Day in 2020, Rhodes sent a message to a similar group, saying he doubted Congress would keep Trump in the White House.
[…]
“The only chance we/he has is if we scare the s— out of them and convince them it will be torches and pitchforks time. … But I don’t think they will listen,” Rhodes wrote.
Six days later, on New Year’s Eve, he sent a message in an encrypted group chat to other Oath Keeper leaders, saying, “There is no standard political or legal way out of this.”
Obviously, we’re getting the prosecutor’s brief here and DOJ still has to prove all of this in court beyond a reasonable doubt. Still, US Attorneys don’t bring charges they aren’t pretty confident they can prove and this is the most high-profile case we’ve seen in a long time. They’ve spent a year getting their ducks in a row and I’m confident they’ve got the goods.
We also don’t know what further charges could come out of this. It’s possible that these charges are partly designed to gain leverage in hopes that some will turn on others, perhaps others higher on the food chain. Whether there was any direct coordination with Trump officials remains to be seen.
Still, this reinforces my longstanding view that the Capitol riot was more than one thing but rather a series of overlapping events. Rather clearly, given that the Oath Keepers planned their part of this weeks in advance, they weren’t spurred to action by Trump’s speech to the rally shortly before attendees marched on the Capitol.
Next up in “But What About…”, What about all them BLM n****s and Antifa who were not conspiring to overthrow the government? When do they get charged with seditious conspiracy to overthrow the government?
Long overdue.
@Kathy: But they were conspiring to overthrow the government. They voted, didn’t they?
A quibble, James. You wrote:
. While they weren’t spurred by the specific words in the speech, they clearly were there *because* he was giving a speech that would involve him telling the crowd to march on the Capitol. The excerpted communications in the indictment explicitly reference the upcoming directive to march on the Capitol.
“…they weren’t spurred to action by Trump’s speech to the rally shortly before the attendees marched on the Capitol.”
Is this going to be a way for Trump to wriggle out of culpability?
@SKI: Sure. But, as I’ve written many times, I think there are folks—and these were the ones that specifically pointed to—who arrived with criminal intent. I think there were others who simply came to rally and make their voice heard and got swept up in the mob. And there were others who were essentially lookie-loos, running around the Capitol taking selfies and such without any intent on harm.
@CSK: As I’ve maintained throughout, I think Trump stayed on this side of the very, very high bar the Supreme Court has established for criminal incitement. There may be some conspiracy charges available but that’s just outside of my limited legal expertise.
@CSK:
Morally? Absolutely not – though some will assuredly spin it that way.
Legally? The reality is that, absent a provable chain of coordination between someone on his team of staff or advisors and someone who committed an act of violence, he is not going to be charged as part of a conspiracy and the speech itself isn’t going to generate liability under the relevant caselaw.
@James Joyner:
All true but the implication of your phrasing, as CSK reacted to, was that the only think Trump or his associates communicated that might lead to liability or culpability was on the day of the speech. That isn’t accurate.
His speech itself that day will not result in criminal jeopardy of any kind. The protections of the 1st A. and the caselaw applying it from Brandenberg on are pretty clear. But the actions taken in the days and weeks before might.
To be clear, I doubt they will bring a case but I could see a scenario were one of the folks in his circle (Don Jr. , Roger Stone, etc.) communicated with one or more of the Oath Keeper leaders about the day. Depending how they did it and the timeline *phone call with trump about Easterbrooks insane plan, followed by secured message to oath keeper about creating a disruption, followed by another call to Trump or someone else in the circle. That chronology is about the only way Trump gets charged with conspiracy – and given the profile the documentation or testimony would have to be pretty explicit and provable.
@James Joyner: @SKI:
That’s what I thought. I wonder how this will play out with those who insist that all the violence was committed by BLM, Antifa, and FBI plants. Perhaps they’ll insist that Rhodes et al. are Deep State agents.
@SKI: I think we’re in agreement. I’ve always maintained that Trump bore moral responsibility for 1/6 but wasn’t guilty of criminal incitement. Regardless of whether there was direct coordination with the militia types (and I tend to doubt it), I think there could be something WRT the various attempts to get state and local officials to do illegal things. He wasn’t particularly clever or subtle in how he went about that. But, again, that’s pretty fine-tuned criminal law and outside the narrow pockets of ConLaw I’m comfortable commenting on.
@CSK: That’s easy. They are innocent babes, as pure as the driven snow, true blue patriots who were just trying to support the one true and rightful President.
@James Joyner:
How can you possibly know that? It is way too early to know the extent of the coordination and instigation between groups like the oath keepers and Trumpmand his organization. It might be reasonable to say, “from what we know now, it appears Trump…”, but the way you put it makes it seem as if we all have relevant information.
It seems pretty clear to me given all the circumstantial evidence Trump was instigating all the efforts to overturn the election, including the violent ones. You are given too much weight to the fact that he was all, “will no one rid me of this troublesome priest?” rather than, “kill him”. There are hundreds of mob bosses in prison post RICO who learned that it’s not much of a defense that you only hinted that you wanted a crime done.
@MarkedMan:
Sure. I allude to that in the OP. But that’s conspiracy, not incitement.
This requires a lot of money. Where did that come from? Who is supplying it? I think the money trail is more important and more interesting. And what legal jeopardy are the money people in anyway?
@James Joyner: Fair enough. To my layman’s mind, if he had conspired to have the Oathkeepers there to instigate violence, and then gave the speech necessary to kick it off, it seems like incitement. But IANAL
@Scott:
Insofar as money is concerned, the members of Oath Keepers pay dues. Lifetime dues are $1200. There are different memberships, ranging from $10 monthly to $50 monthly and more.
With thousands and thousands of people joined up, that means a healthy coffer for Rhodes to raid.
@James Joyner:
Based on what we know, many former Federal Prosecutors (especially those who are not primarily media personalities) hold the same view.
The thing that really caught my eye about this was that the Feds somehow got hold of decrypted messages from a message service. Was this inferior codecraft? Or collaboration by the service, or some kind of Trojan backdoor that’s always been there?
But it’s probably bad for the targets. They expected no outsider to ever read that stuff, so its likely they weren’t careful about what they said.
@Jay L Gischer:
Most likely they were able to get a device from one of the people on the group chat list. Signal encrypts messages in transit, but not on the phone once received (at least that’s what I’ve heard explained). So if they have a physical phone, they can read all the messages to the group.
FG is not going to be charged–today, tomorrow, or any other timed–of any crimes whatsoever related to Jan. 6. The DOJ will be very careful to not let THAT djinni out of the bottle. Do a cleansing breath and get over your wet dreams of FG living out his golden years at Club Fed. Ain’t gonna happen.
@Jay L Gischer: @just nutha: A really good explainer from Just Security.
@just nutha: I continue to believe it incredibly unlikely. They would have to have a Grade A case to even think about it.
@Mu Yixiao: That seems a likely possibility. Which means someone had either poor operational security and a weak password on their phone, or collaborated.
Still curious to know more.
@CSK:
And Rhodes is a Republican, so it’s reasonable to assume the grift was a big part of his game. And I’ll be surprised if there isn’t some Billionaire Boys Club money trickling in.
And not being in a serious mood this morning, I’ll compliment James on his choice of photos and note the aptness of “Beer Gut Putsch”.
I just glanced at WIKI’s page on the Oath Keepers. Why does it not surprise me that in addition to being a paratrooper and Yale Law grad, he was a staffer for Ron Paul. It also notes he’s disbarred in Montana. Maybe we should shut down Yale, and Harvard, Law until we understand what’s going on.
@just nutha:
I agree Trump won’t face seditious conspiracy charges. My wet dreams involve civic indictment on fraud – which I believe is still very much alive and which has the added benefit of being more damaging to TFG’s standing with his true believers. Charges of sedition would be a badge of honor with that crowd, while fraud would tarnish his brilliant business man persona.
@gVOR08:
I’ve noticed that pictures of white supremacists tend to refute the premise that the subjects are members of a superior race.
@gVOR08:
Rhodes’ estranged wife says that he’s “a complete sociopath.”
@Scott F.:
I’ve got my doubts. Multiple bankruptcies haven’t done anything. Trump University made not a ripple in their placid acceptance of Trump’s genius. Sadly, when it comes down to it true believers just believe.
@MarkedMan:
Don’t forget the Trump Foundation, Trump’s now-shuttered personal piggybank. A judge ordered Trump to pay over 2 million to eight different charities.
Trump had used the funds he claimed were raised for veterans to pay for his 2016 campaign.
But you’re right–nothing will dissuade the true believers from adoring him.
@James Joyner:
IANAL – but I do know a common check of causation is the “but for” test.
But for Donald Trump January 6th does not happen.
@Jay L Gischer: Middling, half-assed security is surprisingly common among those who have convinced themselves that they are on a righteous path and success is thereby inevitable. Nevertheless I doubt they were sloppy enough to not see a danger in trying to contact the White House or Mar A Lago electronically.
It’s IMO unlikely a direct link between the Oath Keepers and Trump will emerge.
@Daryl and his brother Darryl:
But being a controversial asshole is not against the law; you have to commit actions that are illegal.
In fairness, the incitement cases have dealt with a priori situations: controversialists (ironically, a KKK leader and a Black civil rights leader) being arrested for conduct that might incite violence. I don’t know that we have precedential rulings for charging people after the fact. But the basic logic would still hold: unless a specific person or persons are directed to do a specific, illegal thing right then or thereabouts (“imminently”) it’s not incitement.
@dazedandconfused:
A news report yesterday mentioned that some of the evidence against the Oath Keepers was in encrypted Signal texts. The report didn’t elaborate on how the Feds got them. I seem to recall references to members of the administration using Signal for official business. (But her EMAILZ!!!!) Some of TFG’s minions may have thought they were being more clever about message security than was warranted.
@gVOR08:
Mu’s theory above seems the most likely. Several Oath Keepers were previously arrested for participating in 1/6, so they probably got some phones. You get the phone, you’ve got the de-encrypted text.
@dazedandconfused: I believe Signal allows deleting messages. The first thing the feds do is grab your phone. These guys kept their incriminating messages? And they never heard of burner phones? Security seems to have been sloppy.
@dazedandconfused: Not to mention you have to unlock the phone which isn’t easy, and Apple, for instance, won’t help law enforcement to do it.