We have reached a turning point on the road to accountability for those who led the January 6 insurrection, whether they stormed the physical barricades of Congress or not.
On Jan. 13, the Justice Department indicted Stewart Rhodes, 56, leader of the extremist group The Oath Keepers, and 10 others who prosecutors say were the spearhead of the Capitol Riot. The monumental 17-count indictment alleges that he and his co-defendants, along with other unnamed individuals, were part of a “seditious conspiracy”.
We have reached a turning point on the road to the accountability of those who led the January 6 uprising.
This crime is, indeed, the brother of treason. Under 18 USC §2384, a seditious conspiracy is an attempt “to overthrow, suppress, or destroy by force the government of the United States, or…by force to prevent, hinder, or delay the enforcement of any law of the United States”. United States.” He faces up to 20 years in prison.
This landmark indictment creates a huge incentive for defendants to cooperate with the government and help fulfill Attorney General Merrick Garland’s January 5 pledge to hold “all perpetrators of January 6, at all levels, accountable.” under the law – whether they were present that day or were otherwise criminally responsible for the assault on our democracy. Four other Oath Keepers (at least) are already cooperating.
As a legal scholar and former prosecutor who criticized the pace and apparent incompleteness of Garland’s investigation, we tip our hats to the Attorney General for this huge step forward. We also note below the new progress we remain hopeful to see.
But above all.
There are three major aspects in which Thursday’s indictment signals a pivotal moment. This confirms that the Justice Department believes that the plotters of the Capitol siege were specifically intended to overturn the election, prevent the legal transition of power, and smash our democracy. Moreover, the new conspiracy charge sends the message that the door to prosecution for everyone involved in the seditious scheme has officially opened.
Finally, it shows that the Justice Department is methodically moving up the chain of command in what it believes to be a wonderfully organized multi-pronged conspiracy.
With respect to the first critical marker, the indictment establishes for the first time the Justice Department’s confidence that it can prove beyond a reasonable doubt that the violence was intended to intimidate Congress into preventing certification of Joe Biden’s election. “The purpose of the conspiracy,” charged the grand jury, “was to oppose the lawful transfer of presidential power by force, by forcibly preventing, obstructing, or delaying the execution of the laws governing the transfer of power “.
Prosecutors say lead defendant Rhodes himself sent this message to fellow oath keepers on Christmas Day 2020: ‘I think Congress is gonna fuck [President Trump] on. The only chance we have is if we scare them and convince them that it will be time for torches and pitchforks if they don’t do the right thing.
Second, in complex cases of organized criminal activity, the first conspiracy charges are usually preliminary steps in determining who else was leading the scheme. Beyond the 11 named oath keepers, the indictment specifically says the seditious conspiracy involved “others, known and unknown.” In a conspiracy, it is sufficient that these “others” were involved in a single “overt act” and shared its unlawful purpose to be criminally liable.
Third, the 48-page indictment flatly contradicts the Republican disinformation campaign that January 6 was a spontaneous riot led by “a few bad apples.” The indictment sings a very different tune. Its specifics and the details that may come out during the trial are important because the false Republican narrative has imposed itself on far too many citizens.
The 48-page indictment flatly contradicts the Republican disinformation campaign that January 6 was a spontaneous riot led by “a few bad apples.”
The indictment alleges that as early as November 22, 2020, a Florida branch of the Oath Keepers conducted “unconventional warfare” training. In December, the North Carolina chapter “held a training session that…focused on” vehicle operations, roadblocks, vehicle recovery, convoy operations…setting up place of hasty ambushes and reacting to ambushes “and how” to fall into formation when we come together.
Some co-conspirators, according to the indictment, “also amassed firearms on the outskirts of Washington, D.C., distributed them to ‘Quick Reaction Force’ (“QRF”) teams, and planned to use firearms to support their plot to [stop the lawful transfer of presidential power.]Prosecutors got their hands on messages detailing that “the Comfort Inn Ballston, in Arlington, Va.” would serve as “the location of the QRF.”
The indictment even alleges a plan in case the police close the bridges between DC and Virginia, where the weapons were hidden: the conspirators were “working to obtain boat transportation.”
Meanwhile, the indictment states that on January 6, the members “equipped themselves with … hard-knuckle tactical gloves, tactical vests, goggles, radios, chemical sprays, a paracord accessory, trellis, spectacles [and] the scissors.” At the time of the attack, “the Oathkeepers formed into two military-style ‘stacked’ formations to break through the Capitol, including a formation, once inside, to break through the Senate chambers “looking for Speaker of the House Nancy Pelosi”.
So much for the “spontaneous riot” theory.
We note that the indictment tells us little, if anything, about an earlier but partly distinct phase of the apparent plot – the bloodless coup attempt that took place from November to January 5. This part of the apparent plot fell apart with the then Vice President. Mike Pence’s refusal to bow to enormous pressure from Trump to reject or delay certification of electoral votes.
As we have written elsewhere, efforts by Republican politicians, lawyers, and operatives to find corrupt but nonviolent ways to overturn election results were “Plan A.” Its failure necessitated “Plan B” – the Jan. 6 attack on the Capitol – as a fallback option to keep Trump in power. In recent days, multiple news outlets have added to evidence of such a Plan A by reporting fake voter list certificates — written and formatted almost identically — claiming to name Trump’s voters in seven states he lost. The fraudulent documents were actually submitted to the National Archives in December 2020, but without the backing of governors or secretaries of state, they were ignored.
It appears that some Republicans crafted this unsuccessful national plan so that Pence could recognize “alternative slates” as a basis for disrupting or delaying Jan. 6 certification. On January 13, Michigan’s attorney general referred his state’s forged voter documents to the United States Attorney, a referral likely soon destined for Garland’s office.
And so, while we’ve criticized Garland in the past, we now applaud him and his diligent Justice Department attorneys and the FBI for demonstrating what fierce rule of law investigators and prosecutors can do. And we look forward to its next steps. We continue to hope that the Department of Justice will promptly and fully investigate the events prior to January. 6 coup attempt that came dangerously close to ending America’s constitutional world – not with a bang but with a groan.