The Justice Department’s response to the Jan. 6 U.S. Capitol attack is meeting one of its biggest tests to date, with prosecutors laying out their case for why the alleged planning by several far-right militia members ahead of the attack constituted an insurgent conspiracy.
The charge has rarely been filed in the century and a half that the statute and its predecessors have been on the books. By using it against members of the Oath Keepers, the Justice Department is signaling that it sees breaches of the Capitol as a serious threat to the operation of the US government, legal experts told CNN.
“To charge someone with seditious conspiracy is to send a signal that they’ve not only done a lot of bad things,” said Alan Rozenshtein, a former official in the Justice Department’s national security division, “but that they’ve done bad things that add up to the level where we as a government want to express that this is an attack on the basic functioning of a democratic system and is even more dangerous for that reason.”
Attorney General Merrick Garland rejected initial efforts to add the charge to the Oath Keepers case, CNN previously reported, but as the case developed, investigators were able to build on the evidence with associates and internal communications. The charge was added in a superseding indictment unsealed in January.
The symbolic meaning will hang over the trial taking place in D.C.’s federal courthouse — beginning with opening statements Monday — for weeks to come. There, five alleged members of the Oath Keepers, including leader Stewart Rhodes, will face a jury that will consider whether to convict them on the charge and other alleged crimes.
They are accused of planning to use force to stop the lawful transfer of presidential power, with the grand jury indictment alleging that they “coordinated cross-country travel to enter Washington, DC, equipped themselves with a variety of weapons, donned battle and tactical gear, and was prepared to answer Rhodes’ call to arms at Rhodes’ direction.” The defendants have pleaded not guilty.
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Before the Justice Department revealed the seditious plot against Rhodes and several other far-right activists, there had been considerable handwringing among legal observers about the absence of the indictment, which by name alone carries palpable political weight.
“I don’t believe it was done without a lot of thought. It has shock value,” said Jeffrey Ian Ross, a criminologist at the University of Baltimore.
The bread and butter of Capitol mob prosecutors has so far been an obstruction statute, commonly used for witness tampering, that has been used to charge the rioters with interfering with an official trial. Misdemeanors for unlawful parading in the Capitol and disorderly conduct have also been used as low-hanging fruit against Jan. 6 defendants, and those who acted violently during the breach have also been charged with assault and the like.
Insurance a jury conviction on the seditious conspiracy charge could help vindicate how the Justice Department has conducted its January 6 investigation and debunk claims that the riot was just a protest that got out of hand.
“It has this term ‘seditious conspiracy,’ and so it kind of brings to mind this broader issue of sedition: that you’ve somehow betrayed the government in some way,” said Carlton Larson, a law professor at the University of California in Davis and an expert on the law of treason.
Three Oath Keeper defendants have already pleaded guilty to the charge. It carries a maximum penalty of 20 years in prison.
The history of the seditious conspiracy statute dates back to the start of the Civil War, when Congress made it a crime to conspire to overthrow the United States government or to conspire to use force to “prevent, hinder, or delay the execution of any law The United States.”
In the rare cases where prosecutors have brought charges, they have not always been successful in securing a conviction.
The last time it was charged — against a Michigan militia accused of planning an attack on law enforcement — the count was dismissed by a judge in 2012, who said the Justice Department did not show there was a “concrete agreement to coerce the United States government. ”
The way allegations of seditious conspiracy can run into constitutionally protected free speech can pose a problem for prosecutors, according to Mark Satawa, one of the defense attorneys who represented the Michigan militia members.
“Talking, the act of talking about something — and that something might be the overthrow of the United States government — but it’s still talking,” he told CNN. “And the act itself goes against these very deeply held beliefs that we have as a people, this idea that we should be able to beat up our government.”
In the Jan. 6 case, prosecutors point to alleged statements by Rhodes calling for a “civil war” to stop the certification of President Joe Biden’s victory, as well as specific steps Oath Keepers are accused of taking to plan a violent encounter.
Much of the legal debate over the charge centers on what exactly the Oath Keepers planned to do, since the statute deals with conspiracies intended to impede the government’s ability to do its business. Because charges are so rarely brought, there is little case law that fleshes out the parameters of the crime.
The defense attorneys argued in a lawsuit that Congress’ Electoral College certification ceremony did not meet the statute’s standard for an execution of a law — an argument that Judge Amit Mehta rejected when he declined to dismiss the count.
Outside experts see the legal case for this particular seditious charge of conspiracy as special, in part because of the nature of the government operation the defendants allegedly sought to disrupt.
The alleged conduct, Rozenshtein said, was not aimed at personally enriching the defendants.
“It was more of an ideological objection to the government doing not just any law, but one of the most fundamental laws of American democracy, which is the peaceful transition of power.”
Lawyers for the Oath Keepers have signaled a defense that will argue that in their preparations for January 6, the activists had no intention of disrupting government operations but were preparing to respond to any summons from then-President Donald Trump of the Insurrection Act.
Mehta allows this defense to a limited extent, but ruled that the Oath Keepers could not discuss the legality of, or what is required to invoke, the law, which authorizes a president to deploy state militias to suppress rebellion against the government.
Although the Justice Department’s theory of the case meets the legal definitions of seditious conspiracy, getting a conviction also requires convincing the jury that there is evidence to support the allegations.
Because of the reservations jurors may have about criminalizing political speech, prosecutors will have to go beyond the evidence they present, according to Satawa.
“I think they’re looking for pretty convincing, maybe even overwhelming, evidence that this person really intended to incite a rebellion or overthrow the government before they’re going to convict them for speaking, and especially convicted of committing a crime of an agreement to talk,” Satawa said.
There have been indications that the defense will argue that the Oath Keepers entered the Capitol not to disrupt the certification process, but to assist law enforcement agencies fighting the mob.
Prosecutors, meanwhile, have previewed the use of communications between some of the defendants during the breach, which the government says shows the goal of their actions in the Capitol was to target lawmakers. They have signaled intentions to also play for the jury the video of the attack.
The indictment indicates that investigators also received encrypted text messages prior to January 6 that show the alleged planning of the attack, as well as evidence of militia training sessions and purchases of firearms and tactical equipment prior to January 6. Prosecutors are also expected to call on the witness stand Oath Keepers who pleaded guilty and are cooperating in the case.
Rozenshtein argued that the evidence the jury will consider is straightforward, and what makes the case feel new is how rarely there is a circumstance that warrants an indictment.
“It’s not that it’s hard to prove a seditious conspiracy. It’s just a criminal charge, like anything else. If you have the facts, you can prove it,” he said. “It’s just that generally we haven’t seen a lot of … forced ideological attempts to keep the government from doing its business in a way that rises to the level of seriousness that the DOJ thinks it’s appropriate to bring.”