The Oath Keepers Convictions and What Comes Next

Moving up the ladder

This week saw the most significant verdicts so far in the massive criminal investigation into the events of January 6, 2021. On Tuesday Stewart Rhodes, the founder of the right-wing militia group the Oath Keepers, was convicted of seditious conspiracy for plotting to use force to keep president Trump in power. His codefendant Kelly Meggs, head of the Oath Keepers Florida chapter, also was convicted of seditious conspiracy. Other codefendants were convicted of other serious felonies.

The jury’s verdict confirms that the attack on January 6 was not merely “legitimate political discourse” or a peaceful protest gone bad. It was an organized plot to use force to stop the peaceful transfer of power. This result makes an important statement about the seriousness of those events and the ability of the justice system to hold accountable those who were responsible. And following on the heels of the appointment of special counsel Jack Smith, it puts some wind in DOJ’s sails as its investigation of Jan. 6 moves on to even higher-level defendants.

The Role of the Oath Keepers on January 6

The evidence at trial established that Rhodes and his co-defendants began planning their efforts to overturn the election as soon as Joe Biden was declared the victor. They believed they were responding to calls from president Trump to rally to his side. Using encrypted apps and online messaging forums, they made their plans to gather weapons and tactical gear and travel to Washington for the January 6, 2021 rally that Trump had promised would be “wild.”

Oath Keepers helped lead the attack on the Capitol, seeking to stop Congress from certifying the election results. They used military tactics that included marching in “stack” formations up the Capitol steps. They participated in assaults on law enforcement officers, destruction of property and documents, and defacing the Capitol building.

Some Oath Keepers brought weapons to Washington and stockpiled them in a hotel just outside of D.C. They planned how they might use boats to get the weapons across the river to support the assault if necessary. Members of the group played other roles as well, such as providing security for Trump advisor and confidant Roger Stone.

The Charges

An initial indictment of eleven Oath Keepers was later divided into two cases for trial. There were five defendants in this trial: Rhodes, Meggs, Kenneth Harrelson, Jessica Watkins, and Thomas Caldwell.

Seditious Conspiracy -- The most significant charge was seditious conspiracy, 18 U.S.C. 2384, which makes it a crime to conspire to use force to overthrow the U.S. government or prevent it from exercising its lawful powers. It’s significant not because of the maximum penalty of twenty years in prison – other charges in the case carry that same penalty. It’s because it represented the first time DOJ charged any of the January 6 rioters with a conspiracy: planning a violent overthrow of the federal government.

The seditious conspiracy charges captures the essential nature of January 6. Bringing that charge made it clear DOJ does not believe this was merely a peaceful protest that somehow spun out of control. The plan all along was to use force to overturn the results of the election. The jury’s verdict confirms that and vindicates DOJ’s view of these events.

Obstruction of Congress – Another leading charge in this indictment was obstruction of Congress under 18 U.S.C. § 1512(c). This makes it a crime to corruptly impair, obstruct, or impede any official government proceeding. The defendants were charged with impeding the Congressional certification of the electoral college results by storming the Capitol. This was the only charge for which all five defendants were convicted. It also carries a maximum penalty of twenty years in prison.

Many Capitol rioters have been charged with this obstruction offense. Some defendants have challenged whether the statute properly applies in this case. Almost all judges to consider the matter have held that it does, but one judge disagreed and dismissed the charge. That issue is now bound for the D.C. Circuit and the case will be argued on December 12. I think the government will prevail, but the case bears watching. If the Court of Appeals were to rule that the statute does not apply, the Oath Keepers convictions on that charge would also be at risk. (I wrote in much more detail about the obstruction issue in this post.)

Other charges in this case included conspiring to prevent a police officer from discharging his or her duties, destruction of government property, and obstruction of justice by tampering with documents and records (based on the defendants’ efforts to destroy their text messages and other communications shortly after January 6).

The Trial

The trial lasted about two months. Much of the government’s case was based on the defendants’ own words. Prosecutors presented a mountain of text messages, emails, video, and other records where the defendants set out their plans, including plans to use violence, and were caught on video carrying them out.

The defendants couldn’t really deny they were there or that they took part in the assault on the Capitol. Instead, their defense was a cocktail of claims that boiled down to a lack of criminal intent. They claimed that their violent messages were mere bluster, that they intended the rally to be peaceful, that they never planned to enter the Capitol, that they were merely providing security for senior Trump advisors, and that there was never any agreement (or conspiracy) to engage in violence against the government.

The jury deliberated for only about three days, including a break for the Thanksgiving holiday, before returning unanimous verdicts on all counts. For a two-month trial with multiple counts and defendants, that’s pretty quick.

The Mixed Verdicts

No defendant was convicted of all of the charges against him or her. Meggs came the closest, going home (or rather, going to jail) with guilty verdicts on five out of six charges. But each of the five defendants was convicted of two or more serious felonies. All five were convicted on the twenty-year obstruction of Congress charge discussed above. The results on the other charges were mixed. (See the summary at the end of this post.)

The prosecution would prefer, of course, that all verdicts be guilty on all counts. But split verdicts like this are an indication that the jury carefully considered the evidence against each defendant individually, which is exactly what we want. Some on the right had claimed that any D.C. jury would be filled with rabid Democrats who would do whatever prosecutors asked. The jury’s carefully-considered verdict belies that claim.

Some of the verdicts are fairly easy to understand. When it came to seditious conspiracy, the jury apparently found it appropriate to convict the ringleaders — Rhodes and Meggs — but not the underlings who may not have been involved in all the planning. The jury also logically found that all five defendants, in one way or another, corruptly disrupted the Congressional proceeding to certify the election. But when it came to individual charges such as destroying property, in some instances the jury found that the government failed to prove that charge against a particular defendant, even though the mob as a whole clearly committed those crimes. One might quarrel with a particular result, but this is a sign of a careful jury doing its job.

There’s only one verdict that has me scratching my head a bit: the jury found Rhodes guilty of obstructing the Congressional proceeding but not guilty of the conspiracy to obstruct that proceeding. I’m not sure how that makes sense, given his role as the leader of the group. It seems clear he was involved in the conspiracy to obstruct for which Meggs and other defendants were convicted.

But there’s no requirement that jury verdicts be consistent. Sometimes results like this are simply the product of compromises by the jurors during their deliberations. And it will make no difference in the sentence that Rhodes ultimately faces. So it may be puzzling, but ultimately it doesn’t matter.

What’s Next

DOJ’s investigation into January 6 continues and will now be headed up by the newly appointed special counsel. The separate trial of the four remaining Oath Keeper defendants is set to begin next week. Later in December members of the Proud Boys (the object of Trump’s infamous “Stand back and stand by” comment during the 2020 presidential debates) also go on trial for seditious conspiracy and related charges.

From the beginning, DOJ has pursued a classic “bottom up” approach to investigating the events of January 6. It began by charging and convicting hundreds of lower-level individual rioters, building cases against them, and gathering information. Then it progressed to more significant indictments against the Oath Keepers and Proud Boys, including the more serious charge of seditious conspiracy.

Now we have the first convictions at trial for seditious conspiracy and the first jury finding that the events of January 6 involved an organized conspiracy. The upcoming trials of the other Oath Keepers and the Proud Boys raise the same issues. Each defendant in these cases is a potential cooperator who might provide evidence about others involved in the various efforts to overturn the election, either through violence or through fraud.

After these verdicts, Attorney General Merrick Garland once again vowed that the DOJ will tirelessly pursue anyone involved in the attack on our democracy. We know that Stewart Rhodes and the Oath Keepers were not the most senior people involved. We already know of contacts between the Oath Keepers and Trump advisors such as Roger Stone and Rudy Giuliani. Yet contacts alone do not establish a conspiracy.

A verdict like this changes the atmosphere around an investigation. It demonstrates the government’s willingness and ability to pursue serious charges related to January 6, despite the legal challenges and daunting amounts of evidence. It shows that jurors will be receptive to such cases. Anyone thinking about stonewalling the investigators, or about rolling the dice and maybe going to trial, has to feel a little less confident about their prospects than they did last week. And the prosecutors, for their part, have some fresh wind in their sails and public support for the righteousness of their cause.

If you doubt all this, imagine how different the conversation about these investigations would be right now if the jury had acquitted these defendants.

We don't know yet what other shoes remain to drop. We don’t know whether there will be more charges, or whether any future charges will involve a similar conspiracy or perhaps a different one. We don't know whether any of those just convicted will decide to cooperate. We can only watch to see how the investigation plays out.

But this is a good, solid step as the DOJ continues to move further up the ladder investigating those responsible for the events of January 6. And it’s an affirmation of the wisdom of DOJ’s painstaking, methodical approach to this investigation.

The attempts to overturn the 2020 election were an unprecedented assault on our democracy. These verdicts make an important statement about the significance of those events and how they should be viewed by history. And they provide a great shot of momentum for DOJ as the investigations of January 6 gradually move into their final, and most serious, phase.

Summary of the Verdicts:

Rhodes

Seditious Conspiracy - Guilty

Conspiracy to Obstruct Congressional Proceeding – Not Guilty

Obstruction of a Congressional Proceeding – Guilty

Conspiracy to Prevent Officer from Discharging Duties – Not Guilty

Tampering with Documents (Obstruction) - Guilty

Meggs

Seditious Conspiracy - Guilty

Conspiracy to Obstruct Congressional Proceeding – Guilty

Obstruction of a Congressional Proceeding – Guilty

Conspiracy to Prevent Officer from Discharging Duties – Guilty

Tampering with Documents (Obstruction) – Guilty

Destruction of Government Property – Not Guilty

Harrelson

Seditious Conspiracy – Not Guilty

Conspiracy to Obstruct Congressional Proceeding – Not Guilty

Obstruction of a Congressional Proceeding – Guilty

Conspiracy to Prevent Officer from Discharging Duties – Guilty

Tampering with Documents (Obstruction) – Guilty

Destruction of Government Property – Not Guilty

Watkins

Seditious Conspiracy – Not Guilty

Conspiracy to Obstruct Congressional Proceeding – Guilty

Obstruction of a Congressional Proceeding – Guilty

Conspiracy to Prevent Officer from Discharging Duties – Guilty

Civil Disorder – Guilty

Destruction of Government Property – Not Guilty

Caldwell

Seditious Conspiracy – Not Guilty

Conspiracy to Obstruct Congressional Proceeding – Not Guilty

Obstruction of a Congressional Proceeding – Guilty

Conspiracy to Prevent Officer from Discharging Duties – Not Guilty

Tampering with Documents (Obstruction) – Guilty