17 Counts of Fumbled Sedition

The founder of the Oath Keepers militia group, Elmer Rhodes, and 10 other people have now been charged with seditious conspiracy for their involvement at the Capitol on January 6th. The full indictment can be found here.

Given the amount of evidence indicating overt planning and coordination, and the sheer volume of incriminating communication indicating intent, it's fair to say they're screwed.

Seditious conspiracy is under 18 U.S.C. §2384, and it's a charge which virtually never gets prosecuted, so that alone is enough to make this a notable event. The elements of the charge are fairly straight-forward:

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.

Roughly summarized, you need an agreement between at least two people to use force in order to hinder or otherwise obstruct a government function. Conspiracy charges also require that at least one "overt act" is done in furtherance of the agreement. If you think that the statute is stretchy enough to cover a myriad of conduct which otherwise would be colloquial interpreted as innocuous, you're right! Creative interpretation, and broad statutes criminalizing conduct is why this book exists.

If you read the indictment, it's evident that the government took its time to conduct a robust investigation. I've written before about how most people prosecuted for the storming of the Capitol were caught largely through their own fault. Investigators don't have to work very hard when someone records themselves yelling "We're in! We're in! Derrick Evans is in the Capitol!".

This case is slightly different. The indictment states that they used encrypted and private messaging to communicate, but the government appears to have no shortage of incriminating messages to use against the defendants. The only explanation I can think of is that they have a cooperating witness from the inside.

The militia members appear to be well coordinated from a tactical standpoint, which isn't a surprise because they intentionally try to recruit people with military or law enforcement background. They organized themselves into "stack" formations which entered the Capitol from opposite directions. They also had "quick reaction force" (QRF) teams outside of DC with guns and trucks, supposedly at the ready to deploy at a moment's notice.

The planning for the event started fairly early on:

¶18. On November 7, 2020-the date that President Trump was projected to have lost the Presidential Election-RHODES wrote to the Leadership Intel Chat: "[W]e must now do what the people of Serbia did when Milosevic stole their election. -Refuse to accept it and march en-mass on the nation's Capitol."

The people involved did seem to make a fair effort of at least being aware of operational security:

¶23. On December 19, 2020, HACKETT sent an email to another member of Stack One with the subject line, "test." In the email, HACKETT wrote, "I believe we only need to do this I when important info is at hand like locations, identities, Ops planning." Attached to the email was a photograph that showed cursive handwriting on a lined notepad that stated, "Secure Comms Test. Good talk tonight guys! Rally Point in Northern Port Charlotte at Grays if transportation is possible. All proton mails. May consider an RP that won't burn anyone. Comms - work in progress. Messages in cursive to eliminate digital reads. Plans for recruitment and meetings."

In terms of what Rhodes' ideations were, there does not appear to be much ambiguity:

¶30. On December 22, 2020, in an interview with a regional Oath Keepers leader, RHODES stated that if President-Elect Biden were able to assume the presidency, "We will have to do a bloody, massively bloody revolution against them. That's what's going to have to happen." He urged President Trump to use military force to stop the lawful transfer of presidential power, describing January 6, 2021, as "a hard constitutional deadline" to do so.

¶31. On December 23, 2020, RHODES published another open letter on the Oath Keepers website. RHODES explained, "tens of thousands of patriot Americans, both veterans and non-veterans, will already be in Washington D.C., and many of us will have our mission-critical I gear stowed nearby just outside D.C." RHODES stated in the open letter that he and others may have to "take to arms in defense of our God given liberty."

And of course, just in case Rhodes was worried that the government wouldn't be able to establish the FORCE + OBSTRUCTION element of the charges:

¶34. On December 25, 2020, MEGGS messaged..."We need to make those senators very uncomfortable with all of us being a few hundred feet away." RHODES then wrote, "I think Congress will screw him [President Trump] over. The only chance we/he has is if we scare the shit out of them and convince them it will be torches and pitchforks time is they don't do the right thing. But I don't think they will listen."

It's not clear that they brought firearms to the Capitol, but there's no guessing as to what the QRFs were for:

¶43. On December 31, 2020, JAMES received a Signal message from another person, hich stated, "i have friends not far from DC with a lot of weapons and ammo if you get un trouble i ca. Coordinate help." JAMES responded, "That might be helpful, but we have a shitload of QRF on standby with an arsenal."

¶46. On January 1, 2021, ULRICH messaged JAMES on Signal, "Hey we told to bring guns and maybe stage them in VA?? But you are showing hotels in DC for Alabama. Are we bring guns or no if so how will that work?" JAMES responded, "Were working on a Farm location Some are bringing long rifles some sidearms ... I'm bringing sidearm."

On the day in question, Rhodes further stamped down on any ambiguity regarding their purpose:

¶77. ...RHODES [] messaged the Leadership Signal Chat, "Pence is doing nothing. As I predicted." RHODES added, "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."

¶78. ...RHODES followed: Hey, the founding generation stormed the governors mansion in MA and tarred and feathered his tax collectors. And they seized and dumped tea in water. They didn't fire on them, but they street fought. That's where we are now. Next comes our "Lexington". It's coming.

And just in case the conspiracy element was not already firmly established:

¶80. ...WATKINS made an announcement on the "Stop the Steal J6" channel on Zella...: "It has spread like wildfire that Pence has betrayed us, and everybody's marching on the Capitol ... We have about 30-40 of us. We are sticking together and sticking to the plan."

I'm desperately curious how Rhodes' attorney will deal with this:

¶108. At 3:09 p.m., another individual messaged the Leadership Signal Chat that the "news is reporting Congress given gas masks and are trying to get out." RHODES responded, "fuck em," before posting a photograph of people storming the Capitol.

There's a lot more detail in the rest of the indictment.

I should also note that the indictment contains some conspicuous omissions in certain areas regarding details. For example, instead of quoting from the source on ¶25, it simply says "RHODES published a letter on the Oath Keepers website advocating for the use of force to stop the lawful transfer of presidential power." This likely means the government's interpretation is a stretch, but it also is possible that they don't want to show all their cards. This is, after all, simply an indictment and the amount of discovery on a case like this is bound to be staggering. And it bears repeating again that this is just an indictment, and it's written by the prosecution with an eye towards maximum impact. Still, there's a whole hell of a lot there already.

There are many ways to interpret this group of defendants and their actions. An accusation that they were just LARPing their fantasies with no genuine intent of pushing forward is not out of bounds. They don't seem to have had a coherent or articulable plan besides just showing up and hoping something happens. As the indictment itself notes, it doesn't even appear that they brought guns into the Capitol. I agree that much of the narrative about January 6th lends itself too easily to hyperbolics about the existential peril our Democracy was supposedly placed in. But there's no question of where the sympathies of the rioters lied, or what they hoped would happen, even if their diligent efforts to facilitate that outcome fell far short.

I'm going to jump back on my hobby horse and at least commend Rhodes for his moral consistency. By any measure, he genuinely believes Trump's claims that the Presidential election was stolen by a wide-ranging and well-coordinated conspiracy against this country's system of democracy, and he acted accordingly. Whether or not his beliefs were delusional does not change the clarity of his moral compass.