Editor’s Note: Dennis Aftergut is a former federal prosecutor, currently Of Counsel to Lawyers for American Democracy. The views expressed in this commentary are his own. Read more opinion articles on CNN.
On Tuesday, Stewart Rhodes, founder of the right-wing militia group Oath Keepers, was convicted by a jury in Washington, DC, of seditious conspiracy for his role planning and orchestrating the January 6, 2021 US Capitol insurrection.
Rhodes and four other alleged members of the group faced several charges and each one of the defendants was found guilty of at least one charge in the trial. Prosecutors said they had pre-planned their part in the siege including the use of military “stack” formations to wedge their way through the mob and into Congress’ hallowed halls.
The verdicts confirm a core truth: The violent assault that day was designed, not “spontaneous.” The mob was led, and by those committed to disorder, whatever the cost in bloodshed.
Along with Rhodes, Kelly Meggs was convicted of seditious conspiracy. They both face up to 20 years in prison on that charge. Rhodes and Meggs were also found guilty of obstructing an official proceeding, as were their fellow group members Kenneth Harrelson, Jessica Watkins and Thomas Caldwell –and they all face a 20-year maximum sentence for this charge.
This is a monumental win for the Justice Department, even though the jury acquitted three alleged Oath Keepers of seditious conspiracy. But having found that the leader is guilty of that extraordinary crime is what matters most.
A seditious conspiracy means that Rhodes and Meggs agreed to forcibly obstruct the execution of the laws of the United States by which presidential authority transfers from one party to the other at the pivotal moment of our constitutional government.
Indictment for seditious conspiracy is rare, and convictions even rarer. It’s been 27 years since the last, the 1995 guilty verdict against “the Blind Sheikh,” Omar Abdel-Rahman, and nine fellow terrorists. Their sprawling conspiracy aimed to blow up New York’s World Trade Center, the United Nations building and the George Washington Bridge.
The Oath Keeper verdicts are even more historic. The jury sent a message: Try to overturn our democracy by force and you’ll face a lot of years behind bars. It also confirmed that in courtrooms, facts matter.
We cannot ignore the converse implications had acquittals or a hung jury occurred across the board. Either would have super-charged the imminent hyper-partisan House investigations of the Justice Department and the FBI. Not-guilty verdicts or a hung jury would have energized the presidential candidacy of former President Donald Trump. (He has reportedly said that, if elected, he will “very, very seriously” consider full pardons for those who breached the Capitol that day.)
Any other trial outcome would also have bolstered January 6 insurrectionists’ belief that the ends justified the means of using bear spray, baseball bats, flag poles and fire extinguishers to injure 140 Capitol police officers.
The guilty verdicts also give the DOJ a perfect record of convicting all 13 Capitol rioters who have gone to trial. More than 450 other participants have pleaded guilty.
This trial, however, was a first. No jury had ever considered conspiracy charges against January 6 defendants, though one for the militant Proud Boys is set for December. Conspiracies are important to prosecute because concerted criminal action poses greater danger to society than similar crimes committed by single individuals. Convictions, particularly in marquee cases, may deter future conspirators.
The jury proceeded with care. It deliberated for three days. It distinguished defendants against whom the prosecution proved guilty beyond a reasonable doubt on seditious conspiracy from those against whom the evidence fell short.
Lead prosecutor Kathryn Rakoczy, her team and the FBI had diligently assembled their case, procuring cooperation from multiple Oath Keepers to provide investigatory leads and take the stand. Terry Cummings, a one-time Oath Keeper, testified for prosecutors about the arsenal that his former co-conspirators had secretly assembled at a Virginia hotel across the Potomac, ready for transport to the Capitol. “I have not seen that many weapons in one location since I was in the military,” Cummings told the jury.
Graydon Young, another former Oath Keeper cooperating with prosecutors, testified that the co-conspirators had an implicit agreement with the shared purpose of stopping Congress’ certification of President Joe Biden’s election. That testimony gave prosecutors’ a direct answer to the defense’s primary line of attack — that there was no “meeting of the minds” among the defendants. The less direct answer was that the conspirators’ agreement can be inferred, as here, from evidence of coordinated operations.
Rhodes was convicted even though he never entered the Capitol. The evidence prosecutors marshaled against him was meticulous. It included an encrypted message to his fellow Oath Keepers before January 6 that encouraged them to “rise up in insurrection.” Another message said, “We aren’t getting through this without a civil war.”
And he told another witness days after January 6 that the only thing he regretted was “not bringing rifles,” saying that if he had a do-over, he’d “hang (expletive) Pelosi from a lamppost.” Little wonder that the jury rejected a defense lawyer’s closing argument that this was a “good Samaritan” group, only in Washington to protect Roger Stone and other friends of Trump.
Elections have winners and losers, and when losers resort to violence, a stable democracy requires that they be held to account. By their verdict Tuesday, 12 citizens on a jury reaffirmed for all of us that our constitutional republic will not abide attempts to overthrow it.