On January 6, 2021, in the minutes before the storming of the Capitol, I was sending a welcome message to my new class of criminal-law students while keeping an eye on Congress’s certification of the Presidential election. During the next few hours, a violent mob invaded the building, overwhelmed law enforcement, and drove lawmakers to halt the certification process and hide or evacuate. At the end of that semester, I included a new question on the final exam for my criminal-law students, one about the previously little-known crime of “seditious conspiracy,” which includes conspiring “by force to prevent, hinder, or delay the execution of any law of the United States.”
In the past year, we have seen charges filed against more than seven hundred people for offenses related to the events of last January 6th, ranging from disorderly conduct and assault to conspiracy to obstruct an official proceeding. So far, more than a hundred and seventy people have been convicted through guilty pleas, most of them for misdemeanors. On the eve of the insurrection’s anniversary, Attorney General Merrick Garland stated that the Justice Department was moving to “resolve more straightforward cases first,” and promised that “the actions we have taken thus far will not be our last.” In other words, the more serious or difficult charges were forthcoming. Last week, eleven people, including Stewart Rhodes, the leader and founder of the far-right group the Oath Keepers, were indicted by a grand jury. The most serious of the charges they face is seditious conspiracy, which carries a maximum sentence of twenty years in prison.
The indictment describes some Oath Keepers’ belief that “the federal government has been coopted by a cabal of elites actively trying to strip American citizens of their rights.” That Rhodes, the leading defendant, graduated from one of the country’s most élite law schools, Yale, is more than just a fun fact. He developed his views on the Constitution as a law student eighteen years ago, and won a school prize for the best paper on the Bill of Rights. His paper argued that the Bush Administration’s treatment of “enemy-combatants” in the war on terror was unconstitutional. Rhodes wrote that “terrorism is a vague concept,” and that “we need to follow our Constitution’s narrow definition of war and the enemy.” The argument would have found much support in liberal legal-élite and civil-liberties circles. Liberal attorneys, including at the A.C.L.U., have fought the government on behalf of alleged terrorists arguing just that—with some successes.
Today concerns about terrorism have shifted from foreign to domestic threats. This month, the Justice Department is launching a new “domestic terrorism” unit, and Rhodes and his co-defendants face federal conspiracy charges, which foreign terrorists have faced. We might wonder how this lawyer strayed so far as to end up leading a group to attack the Capitol on January 6th. The answer may lie in his belief in defending the Constitution—and that, in turn, may even point to a potential vulnerability in the government’s case.
The indictment starts with a recitation of federal law on the process for the transfer of Presidential power, namely the Twelfth and Twentieth Amendments to the Constitution and the Electoral Count Act. It alleges that Rhodes planned with his co-defendants to oppose that lawful process by force. But, in order to convict the defendants of seditious conspiracy, the government will have to prove that they planned their storming of the Capitol with the purpose of opposing the lawful transfer of Presidential power.
That might seem straightforward, given the group’s intent to stop Congress from certifying the Electoral College votes. The question of Rhodes’s purpose, though, is complicated by the likelihood that he and his co-conspirators believed that the election was stolen, and that Congress was acting unconstitutionally to install an illegitimate usurper as the President. In other words, the defendants’ subjective purpose may have been to fight against the subversion of law, not to prevent its execution. Thus, “the big lie”—and the troubling fact that much of the country appears to believe it is the truth—is at the core of the seditious-conspiracy charge. The question in this case is whether an act can be deemed “seditious” if its purpose, in the defendant’s mind, was to protect the law rather than to oppose it.
Rhodes, who joined the Army out of high school, founded the Oath Keepers in 2009, with a mission to resist unlawful exercises of government power. His estranged wife has stated that he envisioned himself as “the next George Washington” and called the group he founded “the libertarian version of the ACLU.” The Oath Keepers have focussed their recruitment on members of the military and law-enforcement communities. Extrapolating from the soldier’s vow to “support and defend the Constitution against all enemies, foreign and domestic,” Rhodes has fixated upon the idea that there is an obligation to disobey unconstitutional orders. Members of his organization vow to resist such orders, including gun-control laws that they believe violate the Second Amendment and unconstitutional searches and seizures by the police.
Days after the November, 2020, election, Rhodes sent his followers a message: “We aren’t getting through this without a civil war. Too late for that. Prepare your mind, body, spirit.” He urged the leaders of his group, “We must now do what the people of Serbia did when Milosevic stole their election. – Refuse to accept it and march en masse to the nation’s Capitol.” On January 6th, having breached the Capitol grounds, he wrote, “Hey, the founding fathers stormed the governors mansion in MA and tarred and feathered his tax collectors. . . . That’s where we are now.” Rhodes’s seeming belief that his plan for January 6th was resistance to an unconstitutional process may seem wholly unreasonable, because it was based on the false idea that the election was stolen and that the certification of its result was unlawful. But, if the case goes to trial, the jury will be drawn from a cross-section of the community, a substantial portion of which may share the false belief or find it not unreasonable. Some jurors may find it difficult to convict Rhodes and others of seditious conspiracy if they find that sincere views about reality informed the defendants’ purpose.
Former President Donald Trump has called the insurrectionists “patriots” who were “there for one reason—the rigged election.” Any trial on the seditious-conspiracy charges will be a proxy fight over the legitimacy of those words: whether it is reasonable to believe, as both Trump and Rhodes claim to, that on January 6th Congress was doing something deeply unlawful. This raises the question of whether false beliefs about our democracy will determine the enforcement of our laws; a jury could decide that Rhodes’s conviction that the election was stolen is reasonable enough to mean he didn’t commit seditious conspiracy. Such an outcome might have the effect of adding legal legitimacy to the big lie, and it would underscore troubling questions about the future of American democracy. Now that talk of potential “civil war” occurs not only among extremist groups but in the mainstream press, a public trial of alleged seditionists will showcase the central fissure that could lead us there.