Trump is haunted by the awful possibilities as the Jan. 6 investigation takes a critical turn

This story first appeared at BlumsLaw.

The seditious conspiracy indictment returned against the Oath Keepers is a game-changer for Attorney General Merrick Garland and the Justice Department. After months of dithering, Garland and the DOJ are finally showing they are prepared, as Garland promised in a public address earlier this month, to hold "all January 6th perpetrators, at any level, accountable under law."

The game, however, is far from over. To win it, the DOJ will have to accomplish two things: First, and most immediately, the department will have to prove its case against the Oath Keepers. Second, and even more critically, the DOJ will have to expand the scope of its prosecutions to include Donald Trump and his top aides and advisers.

Neither will be easy.

The Oath Keepers Case

The offense of seditious conspiracy is set forth in section 2384 of title 18 of the United States Code. The statute makes it a crime to "conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof." Conviction carries a penalty of up to 20 years in prison.

In keeping with the statute, the Oath Keepers indictment alleges the 11 defendants conspired to "oppose the lawful transfer of presidential power by force" in contravention of the 12th and 20th Amendments to the Constitution and the Electoral Count Act of 1887.

The indictment marks the first time federal charges related to the insurrection have been levied against Elmer Stewart Rhodes III, the leader of the Oath Keepers. Rhodes, who resides in Granbury, Texas, is a former Army paratrooper and a Yale Law School graduate who once served as an aide to Republican congressman Ron Paul. He founded the Oath Keepers in 2009.

Another member of the Oath Keepers, Edward Vallejo of Phoenix, Arizona, was also indicted for the first time. Nine other members had previously been charged in other indictments involving the insurrection.

Seditious conspiracies are rarely pursued because they are difficult to prove. To succeed, prosecutors must establish beyond a reasonable doubt that two or more individuals agreed to commit the target crime (overthrowing the government, hindering the execution of federal law, etc.), and that each voluntarily joined the conspiracy, knowing of its purpose and intending to advance its goals.

The proof difficulties are compounded in conspiracies that arguably involve expressive behavior implicating the First Amendment protections of free speech and association. As the Supreme Court held in Brandenburg v. Ohio (1969), speech advocating violence cannot be prohibited unless it is likely to incite "imminent" lawless action. Nor may mere membership in a subversive organization be criminalized.

Like treason, seditious conspiracy is a political crime. Progressives have historically--and for good reason--been wary of sedition prosecutions, fearing government overreach and suppression of legitimate dissent. In the summer and fall of 2020, Attorney General Bill Barr reportedly considered prosecuting Black Lives Matter protesters for sedition. Fortunately, Barr relented, likely because he doubted he could obtain convictions, not out of respect for the Constitution.

In 2012, a federal district court judge dismissed seditious conspiracy charges that had been brought against members of the "Hutaree," an apocalyptic Christian militia group based in Michigan. The Hutaree defendants had been accused of plotting to kill police officers in order to spark a larger revolt against the government.

Judge Victoria Roberts, who was appointed by President Bill Clinton and is still on the bench, dismissed the conspiracy charges after the prosecution had put on its case at trial. In her written decision, Roberts concluded that the government's case was "largely built on circumstantial evidence," and that the prosecution had failed to prove the defendants had a concrete agreement to forcibly oppose the federal government's authority. The judge also held that any menacing statements made by the defendants were general in nature and "while vile," were "protected by the First Amendment."

The DOJ also lost an earlier seditious conspiracy case in 1988 when an all-white jury acquitted 13 white supremacists drawn from the Ku Klux Klan and The Aryan Nations in a trial held in Fort Smith, Arkansas.

On the other side of the ledger, the DOJ won a high-profile seditious conspiracy prosecution in 1954 against four Puerto Rico independence activists who had stormed the Capitol, and shot and wounded five members of the House of Representatives.

In 1995, the DOJ prevailed in another seditious conspiracy case brought against Egyptian Cleric Sheikh Omar Abdel-Rahman, and nine followers, who were accused of plotting to blow up the United Nations, along with an FBI building, and two tunnels and a bridge connecting New York and New Jersey.

On its face, the case against the Oath Keepers more closely resembles the DOJ's successes more than its failures. The indictment totals 48 pages, and meticulously avoids targeting the defendants for their political beliefs or their speech.

In carefully drafted but moving prose, it sets forth a day-by-day, hour-by-hour timeline that began shortly after the presidential election, and lists a staggering 124 overt acts committed in furtherance of the conspiracy. The overt acts include dozens of encrypted text messages, as well as the defendants' coordinated travel across the country to Washington, D.C., the purchase of weapons, combat gear and communication equipment, and the formation of "quick reaction force" teams outside D.C. to bring firearms to the Capitol.

On January 6, according to the indictment [and as confirmed by video footage that has since aired repeatedly], the Oath Keepers entered the Capitol in two military-style "stack" formations, together with other rioters who rushed into the building, smashing windows, injuring dozens of police officers, sending lawmakers into hiding and halting the joint session of Congress.

The indictment does not allege Rhodes personally breached the Capitol, but asserts he entered the "restricted...grounds" outside the building, and sent tactical text messages to operatives inside, directing them to "link up" and later, "regroup."

The conspiracy continued through Inauguration Day on January 20th, when Rhodes sent out texts urging others to organize local militias to oppose the Biden administration, and declaring, "After this...if nothing happens...it's war...Civil War 2.0."

According to the New York Times, the case against the Oath Keepers has been bolstered by cooperation agreements reached with at least four Oath Keepers who were at the Capitol on January 6.

In addition to charging Rhodes and his co-defendants with seditious conspiracy, the indictment cites them under sections 1512(c) and (k) of title 18 of the United States Code for "obstruction of an official proceeding"--the joint session of Congress--and conspiracy to obstruct the joint session. Conviction of either offense carries a potential prison sentence of 20 years. One of the defendants is also charged with assaulting a District of Columbia Metropolitan Police officer.

Trump and His Lieutenants

Despite Garland's new-found resolve, the DOJ does not appear to be on the threshold of indicting Trump or his key aides and advisers. The Oath Keepers indictment, standing alone, does not implicate Trump in a federal offense. To the contrary, it contains a text message from Rhodes sent at 1:30 P.M. on January 6, 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 Garland and the DOJ eventually go after Trump and/or Rudy Giuliani, Steve Bannon, Roger Stone, Mark Meadows, Mo Brooks, John Eastman or any other close confederates of the ex-president, it probably will be for obstruction.

Unlike seditious conspiracy, obstruction does not require an intent to use force or violence. There is widespread public evidence that Trump and his top henchmen planned the ultimate act of obstruction in the form of a coup to keep Trump in office in defiance of the actual election results and the applicable law. Among other overt acts, they pressured state legislators and the Georgia secretary of state to overturn the election results, leaned hard on Vice President Mike Pence to refuse to certify Biden's victory, and incited a mob to march on the Capitol on January 6.

As further evidence of his conspiratorial intent, Trump allegedly waited 187 minutes before calling on his supporters to abandon the attack and go home. To this day, he persists in promoting the "big lie" that the election was stolen.

In the end, the biggest challenge Garland and the Justice Department may face in holding Trump and his minions accountable may not be deciding what charges to bring, but narrowing the breadth of any future indictment in light of the unprecedented magnitude of the crime. To win what would likely be the most important trial in our history, the DOJ will have to craft a narrative that is at once comprehensive, compelling and manageable.

As we wait for Garland's next move, one thing appears clear: Trump is living in fear of the awful possibilities.

BY BILL BLUM

For the latest and most incisive progressive and liberal commentary on the Constitution, the Supreme Court, and the all-important intersection of law and politics in the United States, follow Bill Blum on Twitter @BlumsLaw.