Tuesday’s convictions of five oath keepers – including founder Elmer Stewart Rhodes and first deputy Kelly Meggs who were found guilty of the extremely serious charge of seditious conspiracy – may seem like winning goals, but they are not. only critical points that the Department of Justice put on the board just before halftime. Successful government prosecutions sideline some strong players, but the captains and coaches we have reason to suspect made the decisions on January 6, 2021 (former President Donald Trump and his minions) remain on the field .
After eight weeks of testimony, it took just three days for the jury to reach their verdicts.
To win the game, Special Counsel Jack Smith, who was appointed to investigate Trump’s role in the Jan. 6 violence, must use the same playbook that worked against the Oath Keepers. In other words, he should look to see if the seditious conspiracy and stonewalling of Congressional charges is justified for Trump and those around him.
After eight weeks of testimony, it took just three days for the jury to reach their verdicts. The speed of the jury’s deliberations and the potential similarities between what these defendants did and what we know about Trump and his high-profile cohorts should encourage independent counsel to at least consider, if not pursue, such a case. Smith and his boss, Attorney General Merrick Garland, may ultimately decide that there are more palatable alternatives to charging Trump and his advisers with crimes that carry decades in prison, but I think Smith has a valid sermon to explore using the same charges applied to the Keepers of the Oath.
The jury accepted the government’s argument that a defendant need not have entered the Capitol on Jan. 6 to be guilty of obstructing Congress or guilty of seditious conspiracy. The jury also accepted the government’s argument that the defendants’ failure to prevent confirmation of the Electoral College vote count did not make them less culpable. Rhodes, who was in Washington that day, never entered the Capitol. He denied ordering others to rape the Capitol and claimed they were ‘stupid’ for doing so, but the jury did not buy his attempt to distance himself from the violence that day .
The jury accepting these arguments should worry Trump, adviser Roger Stone, former White House chief of staff Mark Meadows, former national security adviser Michael Flynn and others in that orbit.
An FBI agent testified that just minutes after Joe Biden was declared the winner of the 2020 election, Rhodes communicated with Stone through an encrypted “Friends of Stone” chat group created to coordinate Trump’s post-loss tactics. “What’s the plan? We need to roll as soon as possible,” prosecutors said, Stone asked. Rhodes attached a proposal to occupy the streets of Washington and enter the Capitol. The day before the attack against Congress, Stone was on stage at Freedom Plaza telling thousands of Trump supporters, “I will be with you tomorrow, shoulder to shoulder.
At events just before the riot, Stone used oath keepers as personal security guards. The day before the 2020 election, Roger Stone had been recorded by a documentary crew declaring, “F—the vote, let’s get straight to the violence.” The attempted use of force is a key element of seditious conspiracy law. And force isn’t even necessary to obstruct a congressional charge.
Neither Meadows nor Flynn are known to have organized arms caches around the DC Beltway like the Guardians of the Oath did, but the House Jan. 6 committee focused on what it called the “gathering of the crowd”. As NBC reported, in the days following the election, “Flynn became a campaign figurehead to sow doubt about the results and urge Trump to take extraordinary measures to stay in office…and launched the idea of martial law”.
Cassidy Hutchinson, an aide to Meadows, told the Jan. 6 committee that Meadows warned her ahead of time that Jan. 6 could get “really bad” and that Trump lawyer Rudy Giuliani, as he left a January 2 meeting with Meadows, asked “if I was excited for the 6th. … Talk to the chief (Meadows). He knows about it.
It’s important that Smith find out the details of the plan that got Giuliani so excited and see if any of them overlap with the plan enacted by Rhodes and those who follow him.
We know that Trump spread misinformation about a “stolen” election and tried to pressure Vice President Mike Pence not to certify the election results.
On Jan. 6, Trump — the Justice Department could argue — incited a crowd he knew to be armed to accompany him to the Capitol. He told those present “if you don’t fight like hell, you won’t have a country anymore”. We don’t know if the committee or the Justice Department has seen more evidence that could support a sedition charge against the former president, but we do know that Trump spread misinformation about a ‘stolen’ and ‘rigged’ election. and that he tried to pressure Vice President Mike Pence, President of the Senate, does not certify election results. Sounds like the framework for the charges of obstructing Congress or obstructing an official act to me.
There are always gaps in the investigation in a case of this complexity and magnitude. Often these gaps are filled when someone with first-hand knowledge cooperates. It’s another reason the Oath Keepers’ convictions may prove valuable in the special counsel’s investigation of Trump and his White House. Oath keepers looking back on decades in prison might decide that cooperating with prosecutors investigating Trump is in their best interest and their next best move.
Smith and Garland are also considering their next moves. They shouldn’t just be on the scoreboard or sideline Rhodes. They need to figure out if they can get the same person Rhodes was trying to help off the pitch as well.
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