Terry H. Schwadron

Jan. 17, 2022

The serious and rare seditious conspiracy charge we heard last week arising from the Jan. 6 insurrection feels like it was a long time coming.

The issue now is that this charge can be difficult to prosecute successfully. Necessarily, we are left wondering whether the Justice Department has the goods to make its case. After months of criticism over whether the department was dawdling on considering more serious allegations against the organizers of Jan. 6, Justice has to get it right.

In the few instances of its use, prosecutors have found it difficult to persuade jurors that militia groups, for example, pose a threat, even though the statute only requires showing an intent to carry out an attack even if not successful.

Assuming Justice has plenty of evidence, we are once again hearing speculation as to whether the seriousness of this charge will prompt others to cooperate with investigative authorities.

As much as Justice discloses in its 48-page, 17-count indictment, there is plenty the prosecutors don’t say about the evidence.

The seditious conspiracy law makes it a federal crime to conspire to use force to overthrow the US government or to try to prevent the execution of a federal law.

In most news outlets, the charges were seen as an important shift for Justice on Jan. 6 issues into corralling those planning the insurrection even away from the Capitol, though Breitbart, Newsmax and OANN outlets ignored it altogether, and Fox kept the story well into its also-ran headlines.

Charging the Oath Keepers, who recruit members from the military and law enforcement, raises all kinds of questions about motivations and goals for such groups and to whom they pledge allegiance in anti-democracy fervor.

Delayed, But Now Here

For a year, the Justice and the FBI have gathered oodles of video evidence, organized nationwide arrests and launched a lot of prosecutions on relatively less severe counts. Attorney General Merrick Garland said last week that more serious charges were ahead.

This week, they arrived in the form of a seditious plot among Stewart Rhodes, founder and leader of the extremist group Oath Keepers, and at least nine others from several states in connection with the Capitol riot. A federal grand jury said a core group of Oath Keepers adherents allegedly planned for and participated in obstructing Congress on the day that lawmakers certified Joe Biden’s 2020 election victory.

The charge of seditious conspiracy is seen as difficult to prove, however. It requires prosecutors to show that at least two people agreed to use force to overthrow government authority or delay the execution of a U.S. law — and requires proving intent to do so. It does not require that they actually used force or that the plot worked.

If convicted, Rhodes could face a maximum sentence of 20 years in prison.

Rhodes’ lawyers said that the seditious conspiracy charge should not apply.

Others in the group had previously been charged with lesser crimes.

The New York Times said at least four Oath Keepers who were at the Capitol that day and are cooperating with the government have sworn in court papers that the group intended to breach the building with the goal of obstructing the final certification of the Electoral College vote.

Who Are the Plotters?

To date, there is no indication of others with whom the plotters may have had contact or coordination, though there are lots of reports about coordination among militia groups and supremacy groups.

The Oath Keepers had served as protectors of Roger Stone, a long-time adviser to Donald Trump and a reported participant in congressional committee-identified war room discussions on Jan, 5 at the Willard Hotel in Washington.

But from the indictment, we don’t know if this case points to involvement by the election-resistance coordinators who worked behind the scenes in legal, political or other ways to set up the conditions of Jan. 6.
For their part, members of the Oath Keepers who are already facing charges have said through lawyers only they converged on Washington in a security role just before Jan. 6, not to attack the Capitol.  In a Times interview  last summer, Rhodes said several members of his group had “gone off mission” by entering the Capitol, adding, “There were zero instructions from me or leadership to do so.”

The last time federal prosecutors brought a sedition case was in 2010, when they accused members of a Michigan militia of plotting to provoke an armed conflict with the government. They were ultimately acquitted

Sedition has been charged against one international terrorist, but basically has not been a charge for some decades.

CNN reported that some legal experts say a hurdle for prosecutors would be showing that some of the activity by defendants isn’t protected by the First Amendment. 

Similar hurdles grounded an effort last summer by then-Attorney General William Barr, who urged federal prosecutors to use the sedition law to prosecute violent protesters in the wake of the police killing of George Floyd.

Successful prosecution must show intent, reported Bloomberg News.  Sedition defendants are likely to argue about being caught up in the moment with no intention of committing serious offenses. So, prosecutors will use communications, social media and texts to try to show that the rioters planned to storm the Capitol and stop Congress from verifying the Electoral College vote.

It is evident that there were plenty of social media posts threatening conflict, even violence back to Barack Obama days. Whether they are targeted now is a question, though the indictment refers to substantial traffic on encrypted social media channels.

Proving it to support a sedition conspiracy charge, however, may prove more difficult.

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