Seditious conspiracy is rarely proven. The Oath Keepers trial is a litmus test

·7 min read
<span>Photograph: Amy Harris/REX/Shutterstock</span>
Photograph: Amy Harris/REX/Shutterstock

Extensive planning and tangible action by the far-right militia group’s members provide ‘strong grounds’ for case, experts say


Later this year the founder of the far-right Oath Keepers militia and nine alleged co-conspirators will be the first to face trial on seditious conspiracy charges related to the insurrection at the US Capitol.

Related: Outrage as Newt Gingrich says Capitol attack investigators could be jailed

The charges are significant because they allege that the January 6 attack went beyond disorderly conduct and assaults on law enforcement, instead constituting an organized and violent attempt to stop the democratic transfer of power.

But because sedition charges so rarely go to trial, there isn’t a great deal of precedent for how such trials proceed, experts say. And US prosecutors have a checkered history in securing sedition convictions. “It’s been used in ways that have been absurd and has been used in ways that were slam dunks,” said Joshua Braver, an assistant professor of law at the University of Wisconsin.

But unlike some previous uses of seditious conspiracy, many experts say the case against the Oath Keepers is strong. “This case is different. This case is a plan that was executed and the federal government is on much stronger grounds,” Braver said. “If anything is seditious conspiracy, this is it.”

The checkered history of seditious conspiracy trials

Seditious conspiracy is a broad statute that concerns attempts to overthrow the government, levy war against it or prevent, hinder or delay the execution of any law. It also can be applied in cases where suspects seize any government property and carries up to 20 years in prison if convicted.

Partly because seditious conspiracy allegations carry so much political weight, prosecutors have generally been hesitant to bring such charges in the past.

“Seditious conspiracy charges are rarely used in American jurisprudence,” said Jeffrey Ian Ross, a criminologist and expert on political crime at the University of Baltimore. Prosecutors can be wary of issuing such charges, even in cases that may fall under its broad statute, he added.

Members of the Oath Keepers seen marching down the front steps of the US Capitol.
Members of the Oath Keepers seen marching down the front steps of the US Capitol. Photograph: Jim Bourg/Reuters

The last successfully prosecuted seditious conspiracy case came in the mid-1990s, when authorities charged Islamist extremist Sheikh Omar Abdel-Rahman and nine co-conspirators with seditious conspiracy. Prosecutors alleged that Abdel-Rahman and his followers plotted to bomb the United Nations, the FBI building and several other landmarks around New York City.

During the trial, prosecutors presented the jury with speeches of Abdel-Rahman and a recording from an FBI informant in which Abdel-Rahman discussed attacking military installations. The defense, meanwhile, argued that Abdel-Rahman’s speech was constitutionally protected and that he never directly planned attacks. After a week of deliberation, jury members convicted the group of seditious conspiracy along with numerous other charges. Abdel-Rahman died in prison in 2017.

Decades before the Abdel-Rahman trial, prosecutors secured a seditious conspiracy conviction against Puerto Rican nationalists who stormed the Capitol building. Puerto Rican independence activist Lolita Lebron and three accomplices entered the House floor and fired dozens of bullets around the chamber, wounding five legislators. The group, along with numerous people charged as co-conspirators, were convicted of seditious conspiracy and spent over two decades in jail until Jimmy Carter commuted their sentence in 1979.

This case is a plan that was executed and the federal government is on much stronger grounds

Joshua Braver

Other seditious conspiracy cases have fallen apart once they have gone to trial, including the most recent attempt at the charge in 2012. Prosecutors alleged that nine members of the Christian far-right Hutaree militia committed seditious conspiracy through a plot to kill a police officer and then attack their funeral in order to incite an uprising against the government. The defense successfully argued that militia members’ discussion of violent rebellion was essentially fantastical boasting, protected by the first amendment and that any specific plots were instigated by an FBI informant who had infiltrated the group. The militia members were ultimately acquitted of sedition, albeit with several pleading guilty to less severe weapons charges.

A 1988 seditious conspiracy trial involving 13 white supremacists accused of plotting to overthrow the government and assassinate a federal judge provided an even more severe cautionary tale. Prosecutors in the case cut a plea deal with white supremacist leader Glenn Miller, who potentially faced decades in prison for other crimes, agreeing to reduce his charges in exchange for him testifying in the sedition trial. But Miller’s testimony turned out to be weak and unreliable, leading to an all-white jury acquitting all 13 white supremacists. The national chaplain of the Ku Klux Klan hugged several defendants following the verdict and touted it as a victory for white nationalism.

In the years after the trial, Miller was released from prison and once again became active in the white supremacist movement despite being in the Federal witness protection program. In 2014, he killed three people, including a 14-year-old boy, at a Jewish community center and retirement home in Kansas. He died in prison last May.

Oath Keepers founder Stewart Rhodes at Donald Trump Jr&#x002019;s rally in Texas.
Oath Keepers founder Stewart Rhodes at Donald Trump Jr’s rally in Texas. Photograph: Nicholas Kamm/AFP/Getty Images

The case against the Oath Keepers

The case against Rhodes and the Oath Keepers is more straightforward than past seditious conspiracy charges against the far right, experts say, both because there appears to be extensive evidence of planning prior to the Capitol attack and because numerous members took tangible actions to breach the Capitol.

Even Rhodes, who is not believed to have actually stormed the building, is alleged to have plotted to bring weapons to the area and coordinate militia movements.

In the weeks before the insurrection, Rhodes allegedly purchased tens of thousands of dollars worth of weapons and began communicating to other Oath Keepers in an encrypted group chat. “We aren’t getting through this without a civil war,” he messaged days after the presidential election. One Oath Keeper admitted as part of a plea deal last year that he brought an M4 rifle to a Comfort Inn hotel outside of the Capitol, while Rhodes and others allegedly discussed “quick reaction force” teams that could move into Washington DC with firearms. Once inside the Capitol, prosecutors state in their indictment that one group of Oath Keepers moved in a military “stack” formation and went in search of speaker of the House, Nancy Pelosi.

The Oath Keepers “coordinated travel across the country to enter Washington, DC, equipped themselves with a variety of weapons, donned combat and tactical gear, and were prepared to answer Rhodes’s call to take up arms”, the charging documents against Rhodes state.

Members of the Oath Keepers seen among Trump supporters at the US Capitol.
Members of the Oath Keepers seen among Trump supporters at the US Capitol. Photograph: Jim Bourg/Reuters

Rhodes this week pleaded not guilty to the charges and has repeatedly denied that he has done anything wrong or broken any laws. After federal agents used a warrant to seize his phone in May of last year, Rhodes stated that he sat for a nearly three-hour interview with authorities and claimed he had nothing to hide. He claims that Oath Keepers who entered the Capitol went “totally off mission” and that he was only there to prevent his militia members from getting into trouble. At a Texas rally in the months following the insurrection, he told a crowd that he may go to jail for “made-up crimes”.

Rhodes was denied bail, in part because the federal judge overseeing his detention hearing stated that the militia leader had installed “elaborate escape tunnels” on his property and posed a flight risk.

As one of the most prominent leaders in the far-right movement over the past decade, Rhodes’s trial is set to be the highest profile case so far in the investigation and one of the most significant domestic extremism cases in years.

There are now over 700 people charged with crimes related to the insurrection, but the majority of those cases have involved less complex charges that don’t require proving the type of coordination and planning that seditious conspiracy indictments involve. Meanwhile, most of the over 150 people who have so far pleaded guilty in the investigation have received relatively short sentences or no jail time at all.

“They’ve gone for the low hanging fruit first and things are going to get more interesting as the days go by,” Ross said.

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