Last Thursday, the Justice Department unveiled a seventeen-count indictment against eleven members of the Oath Keepers militia group, including its founder and leader, Stewart Rhodes. The indictment is notable for its detailed description of the organization’s military-style planning, recruitment, and training in the weeks before and after the January 6 insurrection at the Capitol, and also because it alleges the most serious charge to date: seditious conspiracy. It is also notable for what it does not allege, and whom it does not name, at least so far. Here are the three big-picture takeaways on what to make of this development and its impact and significance in the overall investigation into January 6.
First, the Justice Department is viewing the violent attempt to prevent the lawful transfer of power as a political crime. Seditious conspiracy is rare not only because it’s difficult to prove, but because it is highly symbolic: It’s the closest crime we have to treason. It brands anyone convicted of it as a traitor to the country and this stigma makes it important, from a legal perspective, to reserve the charge for only the most heinous acts against the government. In fact, the Justice Department could have theoretically charged the central players in the Oath Keepers with treason – their actions would meet the legal definition of “levying war against the United States,” one element of treason required by the Constitution. But as Professor Carlton Larson, an expert on the law of treason at UC Davis School of Law, has noted, the precedent and case law on treason is ambiguous, and may have required the government to prove that the defendants intended to overthrow the government, rather than merely thwart the operation of a single law. While the indictment does include language from Rhodes advocating for a “bloody, massively bloody revolution” in the event that Biden became president and his view that “there [was] no standard political or legal way out of this,” the Oath Keepers’ actions were largely focused on derailing, through intimidation and violence, the execution of the Electoral Count Act on January 6. In short, a treason charge would be harder for the government to prosecute and easier for the Oath Keepers to defend. By contrast, seditious conspiracy is broader, and covers the use of force to “prevent, hinder, or delay the execution of any law.” It is, therefore, not only a perfect fit for the facts alleged in the indictment, but still characterizes the Oath Keepers’ actions as an act of treachery against the United States and democracy itself.
Second, the conspiracy charge offers a vehicle for more people to be added as the investigation continues. A criminal conspiracy involves an agreement between two or more people to commit an unlawful act, and an overt act in furtherance of the conspiracy. (It’s worth noting that in the case of seditious conspiracy, even an overt act is technically unnecessary, on the theory that such conspiracies are so dangerous that waiting for overt actions to further the overthrow of the government may result in said government not existing to prosecute the crime afterwards.) Once the conspiracy has been established, anyone who participates in it can be liable for all the actions of their co-conspirators – this is reflected in the charges against Rhodes, who was not himself illegally on Capitol grounds on January 6 but was the mastermind of the group. This has implications for members of other groups, like the Florida 3%ers and the Proud Boys, which reportedly had an “alliance” with the Oath Keepers on January 6. It may even put individuals like Trump ally and advisor Roger Stone, who was not present at the Capitol on January 6 but employed members of the Oath Keepers who later entered the Capitol as his “security detail,” in the Justice Department’s crosshairs. (Stone has denied any foreknowledge of or involvement in the events at the Capitol.)
One person who appears unlikely to be ensnared by the seditious conspiracy net, at least on the facts alleged in this indictment, is Donald Trump. There’s no doubt that Trump’s exhortation to his followers to march to the Capitol facilitated the Oath Keepers’ plans: The indictment indicates that they were counting on a large mob advancing on the Capitol, which they needed tactically to overwhelm barricades and law enforcement and strategically to provide cover for their military maneuvers. But there’s no indication (so far) that there was any direct coordination or planning between Trump and those associated with the militia group. In fact, the indictment indicates that at 1:30 p.m. on January 6, Rhodes gave the green light for his group to continue the breach of the Capitol, stating, “All I see Trump doing is complaining. I see no intent by him to do anything. So the patriots are taking it into their own hands. They’ve had enough.” If anything, this piece of evidence is exculpatory for the former president, at least as it relates to the seditious conspiracy formulated by Rhodes and his accomplices.
Which brings me to the third takeaway. The conspiracy to lay siege to the Capitol is not the only conspiracy that matters. It receives a lot of attention because its manifestation was violent and spectacular and has been seared into the memories of every American who watched. But the insurrection is better understood as a conspiracy within a conspiracy: The larger conspiracy began months before, with the formulation of an unconstitutional blueprint by Trump lawyer John Eastman for the Vice President to elide the Electoral Count Act by either counting a false slate of electors from seven states in favor of Trump or referring the count to state delegations in the House of Representatives, which would throw the election to Trump. This plan was bolstered on two fronts: First by an effort led by Jeffrey Clark at the Justice Department to encourage the state of Georgia (and possibly others) to investigate false claims of voter fraud in order to call the outcome of the election in these states into question (making it easier for Pence to justify voting for the “alternate slates”). And second, by the submission of fake electoral certificates by Republican operatives in the same seven states to be used in the Eastman scheme. When viewed against this backdrop, the Oath Keepers appear to be the “muscle” in a much larger scheme, to help steel Pence’s and lawmakers’ resolve in case they got cold feet at the last minute. This is suggested by Rhodes’ communication to his co-conspirators in December, stating, “We need to make all those senators uncomfortable with all of us being a hundred feet away…the only chance we/[President Trump] has is if we scare the shit out of them and convince them that it will be torches and pitchforks time if they don’t do the right thing.” The indictment also indicates that the Oath Keepers intended to remain at the Capitol until the Vice President and legislators followed through, with “quick response forces” holding caches of arms at locations outside the Capitol to provide reinforcements to the occupied building.
How far along the Justice Department is in investigating the larger conspiracy – which is technically a coup attempt – remains to be seen. And while Trump’s incitement of the mob and inaction once they stormed the Capitol might seem obviously connected to the extra-legal Eastman scheme, intuition isn’t evidence; without a clear tie to the use of force on January 6, the extra-legal plan to prevent Congress from certifying the election won’t legally be considered sedition. But a conspiracy by any other name – like, say, conspiracy to obstruct an official proceeding – would smell just as sweet (and carry the same sentence). So don’t lose sight of the big picture: There is much, much more to come.