CNN —
The Justice Department’s response to the Jan. 6 attack on the U.S. Capitol faces one of its biggest tests yet as prosecutors present their case for why an alleged plot by several far-right militia members before the attack amounts to a seditious conspiracy .
Charges have rarely been filed in the century and a half since the statute and its predecessors have been on the books. By using it against members of the Oath Keepers, the Justice Department is expressing that it sees the Capitol breach as a serious threat to the operation of the U.S. government, legal experts told CNN.
“To charge somebody with a seditious conspiracy is to send a signal that not only have they done a bunch of bad things,” said Alan Rosenstein, a former official in the Justice Department’s national security division, “but that they’ve done bad things that rise to a level at which we as a government wish to express that this is an attack on the basic functioning of a democratic system and is all the more dangerous for that reason.
Attorney General Merrick Garland abandoned initial efforts to add the charge to the Oath Keepers case, CNN previously reported, but as the case developed, investigators were able to build evidence with associates and internal communications. The charge was added in a superseding indictment filed in January.
That symbolic meaning will hang over the trial, which is being held in federal court in the District of Columbia — beginning with opening statements Monday — in the coming weeks. There, five alleged members of the Oath Keepers, including leader Stuart Rhodes, will face a jury that will consider whether to convict them on the charge and other alleged crimes.
They are accused of planning to use force to stop the lawful transfer of presidential power, with the grand jury indictment alleging that they “coordinated a cross-country trip to enter Washington, D.C., equipped armed with various weapons, donned combat and tactical gear, and were ready to respond to Rhodes’ call to take up arms at Rhodes’ direction. The defendants have pleaded not guilty.
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Before the Justice Department unsealed the seditious conspiracy charge against Rhodes and several other far-right activists, there was considerable controversy among legal observers about the lack of an indictment, which in name alone carried tangible political weight.
“I don’t believe it was done without a lot of thought. It has shock value,” said Jeffrey Ian Ross, a criminologist at the University of Baltimore.
The bread and butter of Capitol mob prosecutions until now has been the obstruction statute, often used to tamper with witnesses, which has been used to accuse the rebels of interfering with official proceedings. Felonies of unlawful parading in the Capitol and disorderly conduct have also been used as low-hanging fruit against defendants since Jan. 6, and those who acted violently during the violation face assault and other charges.
A jury conviction on the rioting conspiracy charge could help vindicate how the Justice Department has conducted its investigation since Jan. 6 and refute claims that the riot was simply a protest that got out of hand.
“He does have this term ‘seditious conspiracy,’ and it kind of brings to mind this broader issue of sedition: that you’ve somehow betrayed the government in some way,” said Carlton Larson, a law professor at the University of California at Davis and an expert on treason law.
Three Oath Keeper defendants have already pleaded guilty to the charge. It carries a maximum penalty of 20 years in prison.
The history of the seditious conspiracy statute dates back to the beginning of the Civil War, when Congress made it a crime to conspire to overthrow the government of the United States or to conspire to use force to “prevent, obstruct, or delay the execution of any law of the United States.”
In the rare cases where prosecutors have brought charges, they have not always been able to secure a conviction.
The last time an indictment was brought — against a Michigan militia accused of plotting to attack law enforcement — the charge was dismissed in 2012 by a judge who said the Justice Department had not shown there was “a specific agreement to violent opposition to the United States government.”
The way the seditious conspiracy charges can run afoul of constitutionally protected free speech could pose a problem for prosecutors, according to Mark Satava, one of the defense attorneys who represented the Michigan militia members.
“The act of speaking, the act of speaking about something — and that something could be the overthrow of the United States government — but it’s still spoken,” he told CNN. “And so the act itself goes against these very deeply held beliefs that we have as a people, this idea that we should be able to speak ill of our government.”
In the Jan. 6 case, prosecutors pointed to alleged statements by Rhodes calling for a “civil war” to stop the certification of President Joe Biden’s victory, as well as specific steps the Oath Keepers are accused of taking to plan violent encounter.
Much of the legal debate surrounding the charge has centered on exactly what the Oath Keepers planned to do, since the statute deals with conspiracies aimed at obstructing the government’s ability to do its business. Because charges are brought so rarely, there is little case law clarifying the parameters of the crime.
Defense attorneys argued in pretrial proceedings that the Congressional Electoral College certification ceremony did not meet the statute’s standard for carrying out a law — an argument that Judge Amit Mehta rejected by refusing to dismiss the count.
Outside experts consider the court case for this particular seditious conspiracy charge to be particularly relevant, in part because of the nature of the government operation the defendants sought to thwart.
The alleged conduct, Rosenstein said, was not intended to personally enrich the defendants.
“It was more of an ideological objection to the government passing not just any law, but one of the most fundamental laws in American democracy, which is the peaceful transition of power.”
Lawyers for the Oath Keepers have signaled a defense that will argue that the activists, in preparing for Jan. 6, did not intend to disrupt government operations but were prepared to respond to any invocation of the uprising by then-President Donald Trump act.
Mehta allowed that defense to a limited extent, but ruled that Oath Keepers could not discuss the legality or what was required to invoke the law, which authorizes the president to deploy state militias to suppress anti-government riots.
Even if the Justice Department’s theory of the case meets the legal definitions of a seditious conspiracy, obtaining a conviction also requires convincing a jury that there is evidence to support the charges.
Because of reservations jurors may have about criminalizing political speech, prosecutors will have to go beyond the evidence they present, Satava said.
“I think they’re looking for pretty convincing, maybe even convincing, evidence that this person really did intend to incite rebellion or overthrow the government before they convict him of speaking out, and specifically of committing a conspiracy crime.” speak,” said Satava.
There are indications that the defense will argue that the Oath Keepers entered the Capitol not to obstruct the certification process, but to assist law enforcement agencies fighting the mob.
Meanwhile, prosecutors have released a preliminary review of the use of communications between some of the defendants during the breach, which the government says shows the purpose of their actions at the Capitol was to target lawmakers. They have signaled intentions to release video of the attack to the jury.
The indictment states that investigators also obtained encrypted text messages prior to January 6 showing the alleged planning of the attack, as well as evidence regarding militia training and the purchase of firearms and tactical equipment prior to January 6. In addition, prosecutors are expected to call Oath Keepers witnesses who have pleaded guilty and are cooperating with the case.
Rosenstein said the evidence the jury will be looking at is clear, and what makes the case feel new is how rare a circumstance is that justifies an indictment.
“Not that it is difficult to prove a seditious conspiracy. It’s just a criminal charge like anything else. If you have the facts, you can prove it,” he said. “We just generally haven’t seen a lot of … coercive ideological attempts to prevent the government from doing its business in a way that reaches the level of seriousness that the Justice Department thinks it’s appropriate to put in place.”
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