The usual caveats apply: beyond what has been disclosed in court records, the mechanics and investigative work product of the department’s investigation are largely secret, and predictions are still a risky business. One could reasonably consider the conspiracy charge to be part of a potential lead that could lead to a possible prosecution of Trump. But there’s good reason to doubt the department is actually moving closer to indicting Trump for his role in the events of Jan. 6 or his conduct to date.
One thing is clear, and that is that the indictment represents the kind of incremental but significant progress that Attorney General Merrick Garland promised in his Jan. 6 speech earlier this month. Nine of the 10 people charged alongside Oath Keepers founder Stewart Rhodes were already charged, but they and Rhodes now face the charge of seditious conspiracy in addition to the pending charges. The broad outlines of the accused’s conspiracy had been outlined in earlier indictment documents, but the latest indictment provides a fuller and more detailed account that includes numerous communications involving Rhodes himself – a particularly useful compendium for those of ‘between us who are not able to follow all the daily ins and outs of the trials, which now involve more than 700 defendants.
The charge of seditious conspiracy has rightly attracted a great deal of attention in light of public discourse in recent months. According to reports last summer, Garland himself was reluctant to charge anyone with sedition – based on sound political, legal and practical concerns – so the government used legally comparable charges related to obstruction of an official procedure, and he could continue to do so. in all but the most serious cases.
Besides the fact that the department has gathered new evidence since then, the question of whether to charge someone with sedition has taken on greater political importance in recent months. On the left, some observers had criticized the department for not invoking a charge like sedition or inciting insurrection, which they said came closer to the political and legal significance of Jan. 6. Perhaps more importantly, however, many people on the right had been insisting on the absence of those charges and, like Rubio, had downplayed the investigation and the gravity of the day’s events. This public campaign may have prompted the department to do something to reaffirm the importance of its work and place the day’s events in proper context.
Does the latest Oath Keepers indictment provide additional reason to believe that Trump could be charged with seditious conspiracy or conspiracy to obstruct certification? After all, oath keepers provided security for Republican operative and longtime Trump adviser Roger Stone on Jan. 6, and prosecutors may eventually uncover evidence that Stone was communicating with Trumpworld, the White House, or Trump. himself about the violent plan that the government has alleged. .
If Trump knew about, facilitated or encouraged the alleged conspiracy, he could be deemed to have joined in it, which would make him criminally guilty of the conspiracy itself and any other reasonably foreseeable criminal acts committed in connection with the conspiracy – including including, say, obstructing the certification itself, destroying government property, or assaulting federal agents, which were also alleged. If that happened through Stone — whether Stone communicated with Trump through an intermediary at Trumpworld or the White House, or communicated directly with Trump himself — that might be enough. What counts as “joining” a conspiracy is usually fact and context specific and is ultimately up to a jury to decide. But the agreement between co-conspirators doesn’t have to be explicit, and you don’t need to know everyone involved or all the details of the plan to be criminally liable.
Accordingly, the fact that the government has now climbed even higher in the hierarchy of oath-keepers seems to fuel the theory that the Justice Department simply proceeds as it always does in large and complex criminal investigations – from the bottom up. summit — and that criticism of Garland and the department for not investigating Trump more aggressively is misplaced. This is a theory that has been articulated by some more and more exasperated Garland defenders, which also posits that the department could possibly reach Trump through someone like Alex Jones – whose right-hand man, Owen Shroyer, has already been indicted, who helped organize the previous rally that day and who said White House officials told him to drive people to the Capitol.
These claims about how investigations generally go are not frivolous, but they are not as obvious as their proponents claim. For one thing, government doesn’t always operate that way, as I can attest to in a limited way from my experience in prosecuting an international financial fraud that defrauded victims of approximately $150 million. The first prosecution that began in this case involved the CEO of the criminal enterprise – partly because of the way events unfolded in this investigation, but also because I didn’t want to get into an unnecessary drudgery of several years chasing people higher and higher when I saw an opening and a path to indict the CEO early on. Other prosecutors Can say similar stories.
As with January 6, large corporations and criminal events do not always involve clear lines of authority or organizational charts outlining everyone involved in the way you might see if you were investigating misconduct at a large financial institution. They may also involve multiple, perhaps overlapping conspiracies of varying levels of complexity and power, rather than a hypothetical pyramid structure in which each has a single goal. What determined prosecutors typically seek are leverage points and opportunities – ideally involving the most important players possible and as early in the investigation as possible.
None of us ultimately knows what Garland and her team of prosecutors have in mind or hope to accomplish. I tend to believe that if they seriously examined Trump’s criminal exposure for his post-election conduct, we would see significant indications that they were pursuing more direct avenues of inquiry – like a federal investigation into the infamous Trump’s call with Georgian Secretary of State Brad Raffensperger (which appears to have been left to local prosecutors in Georgia), or investigating what happened at the White House on January 6 (which appears to have been left to the committee House special, at least for now).
Prosecutors use disreputable people as cooperators all the time, but if you had the potential to use someone like Mark Meadows as a cooperator against Trump – which they do – that would be much better than hoping to go back to Trump through the oath keepers and people like Stone or Jones, who have well-documented histories of lying.
Time isn’t on the Justice Department’s side either, which is another reason to be skeptical of prosecutors aggressively pursuing Trump in the Jan. will indict one day. If Republicans take over one or both houses of Congress, they risk making the department’s investigation as difficult as possible through watchdog hearings and media appearances. And if Trump announces a 2024 re-election bid, it’s hard to imagine the department under Garland would seriously consider indicting him, because it will look like an effort to steer Biden’s election.
None of this is meant to negate the significance of the latest indictment, but if you’re interested in what it means for Trump, then, as with anything about the man, a healthy dose of caution. and skepticism remains.