How seditious conspiracy charges change the January 6 narrative

On Thursday, federal prosecutors charged Oath Keepers leader Stewart Rhodes and 10 others with seditious conspiracy for their role in the January 6, 2021, attack on the US Capitol.

That charge — the most serious yet to come out of the investigation — is one of several in the indictment unsealed Thursday, which alleges Rhodes and his co-defendants brought small arms to the Washington, DC, area; engaged in combat training to prepare for the attack; and made plans to stage quick-reaction forces to support insurrectionists.

Rhodes was taken into custody Thursday in Texas and is among the highest-profile arrests made in the investigation into last year’s attack on the Capitol, although more than 700 people have thus far been arrested and charged in connection with January 6.

Rhodes’s group, the Oath Keepers, is “one of the largest far-right antigovernment groups in the US today,” according to the Southern Poverty Law Center. Founded in 2009, the group’s members have a history of attending protests while heavily armed, clashing with law enforcement, and supporting former President Donald Trump’s baseless election fraud claims.

Thursday’s indictments are also the first seditious conspiracy charges in the investigation so far, and the first the Justice Department has brought in more than a decade. Seditious conspiracy isn’t the same as treason, but it’s also not terribly far off; as former federal prosecutor Laurence Tribe wrote for NBC News on Saturday, the “crime is, in effect, treason’s sibling.”

Specifically, seditious conspiracy occurs when two or more people work together to plan to overthrow the government or prevent the execution of its laws.

In the case against Rhodes and his alleged co-conspirators, the government presented evidence in the charging documents that shortly after the November 3, 2020, election, Rhodes told his followers, “Prepare your mind, body, and spirit” because, “We aren’t getting through this without a civil war.” In December, Rhodes promised a “bloody, massively bloody revolution” should a peaceful transfer of power occur, and in the lead-up to the Capitol riot purchased thousands of dollars’ worth of weapons, ammunition, and related tactical gear.

Other defendants in the case are alleged to have set up paramilitary training groups and created private Signal groups to discuss their operations, including procuring weapons and establishing a quick reaction force outside the DC area to bring in additional insurrectionists and weapons.

The new indictments are a significant step up from previous charges in the case, which range in seriousness from disorderly conduct to obstructing an official proceeding before Congress, and have so far resulted in sentences up to 41 months in prison. In comparison, seditious conspiracy carries a potential sentence of 20 years in prison.

The indictment is “major news in [the] effort to hold extremists accountable for their role in #Jan6 insurrection,” the Southern Poverty Law Center’s anti-government desk told Vox via email. “January 6th was a culmination of years of poor behavior on Rhodes [sic] part. It felt like this was always where he and Oath Keepers were headed, but many of us had hoped that we could have prevented it.”

The new charges also refute the argument that narratives about the January 6 attack are overblown because no participants had yet been charged with sedition. As the Washington Post’s Aaron Blake pointed out on Thursday, Fox News’s Brit Hume had tweeted just hours before Rhodes’s arrest, “Let’s base our view on whether 1/6 was an ‘insurrection’ on whether those arrested are charged with insurrection. So far, none has been.”

Hume’s tweet echoes months of Fox News hosts’ and guests’ attempts, along with other conservatives, to argue that the Capitol riot did not rise to the level of insurrection.

Seditious conspiracy charges are rare — so rare that, as the SPLC points out, this is just the fourth time in the past 80 years that the statute has been used against right-wing extremists in the US.

In 2010, members of a small Christian militia group in Michigan called the Hutaree were indicted on seditious conspiracy charges, and before that, in the late 1980s, white supremacist militia members in Arkansas were charged with the same crime. In both cases, they were acquitted.

That means the stakes for the Justice Department’s prosecution of Rhodes and his cohort are high, even as lawmakers in Congress continue to seek accountability for January 6 along different avenues. “It’s that significant of a moment,” the SPLC told Vox.

According to a 1993 case, United States v. Lee, proof of a conspiracy rests on establishing that everyone in the conspiracy shares “a ‘unity of purpose,’ the intent to achieve a common goal, and an agreement to work toward that goal”; previous seditious conspiracy cases have failed in part because the government failed to prove that unity, or to establish exactly what defendants were planning to do.

Even when cases are more clear-cut, there are barriers; as historian Kathleen Belew described on Twitter Thursday, cultural and circumstantial factors may have contributed to the 1988 acquittal of the extremists in Arkansas, despite a surfeit of apparent evidence.

“Seditious conspiracy charges against Oath Keepers will seek to show that Jan 6 was not just a ‘protest’ ... but an organized and pre-planned [attack] on American democracy,” Belew tweeted. “The stakes are high, but there are a lot more tools today than existed in 1987-88: an FBI aware of and willing to confront white power and militant right violence; a DOD aware of the problem and taking action; hundreds of journalists telling better and more complete stories.”

In fact — and perhaps in foreshadowing of Thursday’s indictments — the DOJ announced last week it was establishing a unit dedicated to investigating and prosecuting domestic terrorism, shortly after the one-year anniversary of the January 6 attack.

“We have seen a growing threat from those who are motivated by racial animus, as well as those who ascribe to extremist anti-government and anti-authority ideologies,” Assistant Attorney General Matthew Olsen told lawmakers.

Thursday’s indictment, however, could help combat that threat. Jonathon Moseley, an attorney for Stewart Rhodes and his co-defendant Kelly Meggs, told Vox in a phone interview that “the Oath Keepers in general have been pretty much stalled in any of their operations during this whole year.”

“So a lot is going to depend on how the trial goes, what the outcome is. If they’re found guilty, they’re going to be sort of a pariah ... so I think a lot is at stake in terms of the viability of the organization and its movement,” Moseley said.

The indictment could also affect the ability of extremist groups to plan an attack like the Capitol riot, Michael Edison Hayden, an SPLC spokesperson and senior investigative reporter, told Vox.

“Extremists are also paying close attention to the use of Signal” — an encrypted messaging app — “in making this arrest,” Hayden said. “So many far-right figures are perpetually chasing an online space to plan in secret and Signal’s presence in Rhodes’s indictment is a very clear warning sign that they don’t have any great options left. It’s an arrest that will likely inspire quite a bit of paranoia.”

Rhodes himself maintained his innocence during an interview with the FBI last year and in a subsequent appearance in Texas early last year, the Guardian reports. “I may go to jail soon, not for anything I actually did, but for made-up crimes,” Rhodes said at the time.

Rhodes has denied in FBI interviews that he ordered members of his group to breach the Capitol building, saying that anyone who did went in only to give medical aid after they heard someone had been shot, and he did not personally breach the Capitol.

Even beyond the futures of Rhodes and the Oath Keepers, the implications for Thursday’s indictments could be far-reaching. More than a year after January 6, 2021, both the DOJ and Congress continue to probe the attack, but the DOJ has far more staying power: If Republicans win back the House in the midterm elections, DOJ’s seditious conspiracy case will continue, but the same can’t be said for the January 6 select committee, which could be hamstrung or dismantled if the balance of power changes in the House next year.

Despite the improved resources and focus on domestic extremism in 2022, the government’s case isn’t necessarily a slam-dunk. It’s still momentous, however: As Belew tweeted, “the outcome of this prosecution will be enormously important if we hope to curb further violent attacks on people, institutions, and democracy itself.”