Can The DOJ Make A Seditious Conspiracy Case Against Leader Of The Oath Keepers Elmer Rhodes?

According to a Department of Justice press release, a federal grand jury in the District of Columbia returned an indictment that charged 11 defendants with seditious conspiracy along with other crimes related to the breach of the U.S. Capitol building on January 6th.  This breach of the Capitol disrupted for several hours the process of counting electoral votes in the last presidential election.

Among those charged with seditious conspiracy was 56 year old Elmer Rhodes III, the leader of the Oath Keepers. Rhodes was charged along with Edward Vallejo, age 63. Rhodes is the founder of the Oath Keepers and Edward Vallejo is listed as just a member.

Under 18 U.S Code 2384 Seditious Conspiracy is defined as;

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, 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, they shall each be fined under this title or imprisoned not more than twenty years, or both.

The Government Will Have A Hard Time Making Its Case On The Evidence Presented

The government will have an uphill fight to make these charges stick before the court. Conspiracy charges are usually brought when law enforcement thwarts a plot before it is carried out, not a year after it supposedly occurs. This is illustrated by the acquittal of defendants in the 2021 case of seditious conspiracy brought against the Hutaree militia in Michigan to incite a rebellion against the government.  In that case, the judge said that hateful diatribes are protected by the First Amendment and did not constitute proof of making detailed plans for making a rebellion.

It is also well known that the government often brings conspiracy charges against defendants when they lack the evidence to prosecute them for a more specific charge. In the case of celebrity Martha Stewart, she was charged with Securities Fraud, obstruction, and conspiracy. The most serious charge of Securities fraud was dropped but she did go to prison for statements she made to the FBI and conspiracy to commit fraud.  This amounts to saying, “We can’t get you for the actual crime, but we got you on talking about committing it.”

These cases will hinge on the details of the planning made by Rhodes and others in the Oath Keepers, and the details of concrete planning to overthrow the government by violent means. The indictment itself is thin on relating actual concrete planning and instead relies on members using encrypted apps like Signal to communicate with each other and coordinate things like travel plans to reach Washington and gear legally and openly purchased to supposedly forward their plans

The indictment says that Rhodes and the Oath Keepers brought weapons with them to the area, but stored them in a hotel in Virginia, in compliance with the laws in the Capitol which makes possession of such weapons illegal.

They also did very little in terms of trying to conceal their actions and movements.  They used airline and car travel, used credit cards to make purchases of weapons, gear, and ammo, and talked on the phone. They rented hotel rooms under their real names. They also wore clothing with distinctive badges that identified them to everyone in the crowd and law enforcement as members of the Oath Keepers. They seemed to have little concern for security cameras at the Capitol building and other public places like their own hotel.

The last time U.S. prosecutors brought a seditious conspiracy case was in 2010 in an alleged Michigan plot by members of the Hutaree militia to incite an uprising against the government. But a judge ordered acquittals on the sedition conspiracy charges at a 2021 trial, saying prosecutors relied too much on hateful diatribes protected by the First Amendment and didn’t, as required, prove the accused ever had detailed plans for a rebellion.

This case may fail on a similar lack of merit.  The indictment does not detail a clearly defined plan of any kind, but instead cobbles together a bunch of things and invites the reader to imagine a coherent plan around it.

Reading the indictment the government may face this same hurdle as the case in Michigan. There are ample text messages between members saying that a civil war is coming and that they will have no choice but to fight, but none of the messages describe any detailed plan to overthrow the government and install Donal Trump or any other person at the head of the government. In the past courts have been tolerant of political speech, even hateful and hyperbolic as a First Amendment right.

The Violent “Insurrectionists” Kept Their Firearms In Virginia Because It Was Against The Law To Bring Them Into Washington CD

They brought firearms to the area, but in accordance with the law kept them secured in a hotel room at a Comfort Inn hotel in Ballston Virginia which is an 18-20 minute drive to the Capitol.  Probably a much longer drive with some 200,000 protestors in the Capitol that day.   At the hotel was a Quick Reaction Force that was supposed to go to the Capitol on orders from Rhodes, which never came. The number of people in this QRF is not in the indictment, but it could not have amounted to much more than 6-8 people given the number being charged in the conspiracy.  It appears the Oath Keepers at the Capitol would have to return to Ballston Virginia, retrieve their weapons and then return to the Capitol. The actual plan this QRF was supposed to follow is not a part of the indictment. It will be hard for the government to prove these individuals conspired together to illegally overthrow the Republic while making sure they didn’t break any of the firearms laws in DC while doing so.

The day before the conspiracy to overthrow the government was supposed to be hatched, members were texting each other about where to stay and the time and place they were supposed to meet in the Capitol.  This really doesn’t speak to there being a detailed plan for the conspirators to engage in actively.

The indictment describes the actions of two “stacks” of Oath Keepers who stuck together in entering the Capitol building but does not say what their plan was once they entered.  The Stacks were comprised of four or five members each and they joined the crowd entering the Capitol building, Stack One was turned back and did not attempt to reenter, Stack Two got inside the building. While inside the building it is alleged they tried to enter the area where members of Congress have their offices but were turned back.   Rhodes is not charged with entering the building at all, only the “restricted area” outside which presumably means past hasty barricades set up by police that had been removed by the crowds.

The indictment says members of the stack jostled with police officers, but none appear to have violently injured any officers.  Much of the details supposedly proving the conspiracy are entirely legal acts including procuring helmets, goggles, body armor, and wearing uniforms that said “Oath Keepers” on it. In one of the messages, one of those indicted with Rhodes specifically says that they are not bringing firearms and that the QRF will be sworn law enforcement officers who are permitted to be armed.  These members were in their hotel rooms in Virginia and never came to the Capitol.

Those that want to read the full indictment can do so here.

The indictment goes on to say that evening the plotters met in a restaurant in Virginia to “celebrate” their victory in their attack on the capitol and plan next steps.  A celebration of success by plotters bent on violently preventing the certification of the Electoral College vote which was proceeding during that dinner would not make sense, would it? It might if their goal was limited to just entering the capitol building which they did succeed in along with hundreds of others.

Seditious Conspiracy Charges Are Very Rare

The last successful convictions of seditious conspiracy were brought in the 1981 conviction of the Marxist Revolutionary FALN terrorist group. The Puerto Rican nationalists off 130 bombings. In 1980, members of the group stormed the Carter-Mondale election headquarters in Chicago, and the George H.W. Bush campaign headquarters in New York, and held the employee’s hostage at gunpoint. In 1981, they hatched a plot to kidnap President Reagan’s son Ron. Just prior to leaving office, President Obama commuted the sentence of Oscar Lopez Rivera, the leader of the FALN who was serving a 55-year sentence for seditious conspiracy and other terrorism-related charges. In many quarters of Leftist politics here in the U.S., this commutation was met with glowing praise and elation,

Prior to this, Puerto Rican Nationalists were charged again with seditious conspiracy in 1954 when they entered the Capitol building and opened fire on Congress while it was in session, wounding five members of Congress.

Seditious conspiracy carries a statutory maximum penalty of 20 years in federal prison. A federal district court judge will determine any sentence after considering the U.S. Sentencing Guidelines and other statutory factors.

As the press release from the Department of Justice states;

“This case is being prosecuted by the U.S. Attorney’s Office for the District of Columbia and the Department of Justice National Security Division’s Counterterrorism Section. Valuable assistance was provided by U.S. Attorney’s Offices in the Northern District of Texas and the District of Arizona.”

Is The DOJ Under Political Pressure To Find Someone To Charge With Rebellion Or Insurrection?

The DOJ has charged nearly 800 individuals with various crimes related to the riot in the Capitol on January 6th, but these are the very first charges brought for crimes that come close to the level of the events of that day being an “Insurrection or Rebellion” as Democrats and some stenographic media outlets have taken to calling it. Most recently Vice President Kamala Harris compared the Jan 6th riot to Pearl Harbor or the 9/11 Attacks leading which was widely criticized, including here at SOFREP.

While there is certainly good cause to arrest and charge anyone involved in violence, property destruction, or obstructing Congress in its proceeding, it remains to be seen whether these charges reach the level of actual seditious conspiracy or reflect pressure on the Department of Justice brought by the administration to further a political narrative that sees the events of January 6th as another Pearl Harbor attack.

The DOJ may not even want to take these cases to trial.  Sixteen defendants named so far along with Rhodes means as many as sixteen different trials with sixteen different defense attorneys, this would take years to get through the court system and an acquittal on the evidence in one case would make acquittals easier in all of them.  Should the DOJ lose these cases in court, it would put the final nails in the coffin of January 6th being an “Insurrection.”  The safer strategy and one often used by the DOJ is to bring a raft of charges amounting to hundreds of years of prison time and then allow lessor sentences for guilty pleas. Using this method, only 2% of criminal defendants in federal cases actually go to trial and the Justice Department claims a 90% rate of conviction on those that do.  Trying to get the sixteen defense attorneys to all agree to these plea bargain offers will also be a challenge.