U.S. prosecutors appear to have proceeded carefully in bringing sedition charges against 11 people linked to a far-right militia who took part in the deadly 2021 attack on the U.S. Capitol and are likely to obtain convictions, legal experts said.
An indictment was released on Thursday against the founder of Oath Keepers, Stewart Rhodes, and 10 purported members of the group, accusing them of conspiring to forcefully oppose the transfer of power between then-President Donald Trump, a Republican, to his successor, Democrat Joe Biden.
Seditious conspiracy is defined as attempting “to overthrow, put down or to destroy by force the government of the United States” and the U.S. Department of Justice has been wary of lodging such a charge in part because of losing a case 12 years ago, a former government lawyer said.
The indictment for the Jan. 6 attack is “thorough and rigorous,” said Alan Rozenshtein, a former Justice Department national security lawyer who teaches at the University of Minnesota Law School.
“I don’t think there is much the defendants can say here,” said Rozenshtein. “This is the textbook definition of seditious conspiracy. If this isn’t seditious conspiracy what is?”
The sedition charges are the first against participants in the storming of the building by Trump supporters after he gave a fiery speech repeating his false claims that his November 2020 election defeat was the result of widespread fraud. U.S. prosecutors have brought criminal charges against at least 725 people linked to the riot.
The seditious conspiracy charges were filed a year and a week after the assault amid concern from some Democrats and advocates that the Justice Department had been too sparing in bringing serious criminal charges against people who stormed the building or planned for violence.
The Oath Keepers are a loosely organized group of activists who believe that the federal government is encroaching on their rights, and focus on recruiting current and former police, emergency services and military members.
Members of the group moved up the Capitol steps on Jan. 6, 2021, in a military-style “stack” formation and wearing tactical gear, the indictment said. Nine of the 11 people named in the indictment were already facing charges.
“We aren’t going through this without civil war. Too late for that. Prepare your mind, body and spirit,” Rhodes said in a November 5, 2020, Signal message, according to prosecutors.
They said that in December 2020 Rhodes wrote of the certification of Biden’s election win scheduled for Jan. 6 that “there is no standard political or legal way out of this.”
Amy Cooter, an expert on U.S. militia movements and a lecturer at Vanderbilt University, said: “It’s important to reserve seditious conspiracy for serious cases, and I personally think this is one.”
A failed 2010 prosecution against a Christian nationalist militia called the Hutaree gave federal prosecutors pause, said Rozenshtein.
Members of the Hutaree were charged with conspiring to kill a Michigan police officer and then ambush the officer’s colleagues who would have gathered for the funeral. But the seditious conspiracy charges were dropped after a judge ruled prosecutors had failed to prove that the militia members were doing anything more than talking about their hatred for authority.
Legal experts said that high-profile outcome highlighted a common issue in seditious conspiracy cases: that the charges might encroach on the broad free speech protections afforded by the U.S. Constitution.
In September 2020, amid civil unrest, then-U.S. Attorney General William Barr urged federal prosecutors to consider filing seditious conspiracy charges against people who engaged in violence at anti-police protests. That move drew immediate pushback from civil liberties group, who said the seditious conspiracy statute should be reserved for more dire threats to U.S. democracy.
Lawyers and extremism researchers said the Justice Department appears to have carefully vetted the Oath Keepers indictment, possibly using cooperating witnesses to build a more clear-cut case of attempting to overthrow the government.
One police officer who battled rioters on Jan. 6 died the day after the attack and four who guarded the Capitol later died by suicide. Four rioters also died, including a woman who was shot by a police officer while trying to climb through a shattered window. About 140 police officers were injured during the hours-long attack.
“The government has a strong case against the Oath Keepers,” said Joshua Braver, a professor at the University of Wisconsin Law School. Unlike the Hutaree, the Oath Keepers “executed their real agreement to obstruct the peaceful transfer of power.”