Will a jury actually convict white insurrectionists of seditious conspiracy?

07 October 2022

The former leader of the Oath Keepers militia and his four associates went on trial for seditious conspiracy this week. The defendants are accused of conspiring to prevent the transfer of power from Donald Trump to Joe Biden, a plan which included, but was not limited to, the siege of the US Capitol on January 6.

Stewart Rhodes and his minions are the first J6 defendants to be tried under this rarely-used Civil War-era statute. The government’s track record of convicting far-right defendants of seditious conspiracy is weak, but the facts of the Oath Keeper affair make for an unusually strong case.

The last people to be convicted of seditious conspiracy were Sheik Omar Abdel Rahman and nine of his followers, who were found guilty in 1995 of scheming to blow up the United Nations and various New York City landmarks in a bid to turn American public opinion against Israel. A large group of Puerto Rican separatists was convicted of seditious conspiracy for storming the US Capitol and shooting five members of Congress in 1954.

The federal government has struggled, however, to make seditious conspiracy charges stick against rightwing extremists.

In 1939, 17 followers of the fascist broadcaster priest Charles Edward Coughlin were acquitted of plotting to overthrow the United States in order to purge the country of Jews and Marxists.

In 1988 an all-white jury in Arkansas acquitted a group of high-profile white supremacists accused of plotting to murder a federal judge and an FBI agent in what came to be known as the Fort Smith Sedition Trial.

In 2012, several members of the far-right Hutaree Militia were acquitted of plotting to murder a police officer in order to provoke a showdown with the federal government. The Hutaree case was very weak and deserved to fail, but you could also be forgiven for thinking that American juries are a lot more sympathetic to white extremists.

Perhaps the state’s biggest asset in the seditious conspiracy case against Stewart Rhodes is the fact that three other Oath Keepers have already pleaded guilty to the same charge.

Brian Ulrich, Joshua James and William Todd Wilson have already signed plea deals admitting that they conspired with Rhodes to forcefully impede the transfer of power by disrupting the certification of the election on January 6 as part of a plot that extended all the way to the inauguration.

That means they can testify to the inner workings of the plot. For Rhodes to go down, the government only needs to prove that he entered into that agreement with one other person who wasn’t a government agent.

The defense will do their best to attack the credibility of the three turncoats, painting them as opportunists who lied to save their own skin. And let’s be real, they’re Oath Keepers. It would be surprising if they weren’t a little opportunistic.

But all it takes is for a jury to believe one of them. And the jury doesn’t have to take their word alone. The Oath Keepers left behind mountains of evidence. For all their pretensions of tactical sophistication, the Oath Keepers were remarkably sloppy.

Rhodes also pledged to fight a bloody civil war if Trump didn’t invoke the Insurrection Act to keep himself in power. He didn’t talk about resisting the US government by force. He put it in writing, publishing “calls to arms” on the Oath Keepers’ website, and discussing his plans on right-wing radio.

The defense will say that this is just all-American, First Amendment protected expression. And by itself, it would be. It’s not a crime to argue for revolution in the abstract. It only crosses a legal line if it leads to imminent lawless action. Like, say, attracting dozens of armed followers to Washington, stashing an arsenal of automatic weapons in local hotel rooms and forcibly disrupting a joint session of Congress.

The Oath Keepers were secretive, relying on burner phones, face-to-face meetings, false identities and other subterfuge to keep their plan secret. So the state needs witnesses to fill in some of the details. However, much of the scheming was conducted over Signal chats that are now in the hands of the government.

The Oath Keepers were both secretive and sloppy. Rhodes was caught on tape warning his followers against loose talk that could get them popped for conspiracy. Nevertheless, his co-defendants were constantly posting incriminating updates to Facebook.

On January 6, one of the Oath Keepers’ lawyers scolded Rhodes on Signal: “STEWART: YOU ALL NEED TO DELETE ANY OF YOUR COMMENTS REGARDING WHO DID WHAT. [...] So GET BUSY. DELETE your self-incriminating comments or those that can incriminate others.”

The case against the Oath Keepers is also stronger than most seditious conspiracy cases because they actually tried to keep Trump in office by force. Oath Keepers in full battle rattle formed two infantry-style stacks and breached the building. We all saw it on television.

Historically, seditious conspiracy has been a kind of consolation prize for the government when they caught someone before they managed to do anything bad. In that case, a jury is always going to wonder if they were ever going to follow through, or whether the whole thing was so much loose talk, or even whether the whole case was manufactured by undercover agents egging on vulnerable people.

In the case in question, we know the Oath Keepers followed through.

One of the turncoats, Joshua James, swore in his plea deal that he accompanied Rhodes on the run after J6 and saw him buy and distribute thousands of dollars worth of weapons that he intended to use to stop the transfer of power. James also claims that on Jan 20, Rhodes gave him an AR15-style rifle and said he would “not be taken by law enforcement without a fight.”

This is a test of whether the 19th century statute still has teeth and, moreover, whether a jury is willing to apply it to white insurrectionists.

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