The seditious conspiracy verdicts against the Oath Keepers national leader Stewart Rhodes and Florida chapter leader Kelly Meggs are important milestones for the Department of Justice in its mission to hold accountable those involved in the attack on the U.S. Capitol on January 6, 2021. Seditious conspiracy is the offense that best fit the evidence introduced of a conspiracy “by force, to prevent, hinder, and delay the execution of any law of the United States”—in this case, that law being the constitutional and statutory provisions governing the transfer of presidential power. The verdicts finally hold Rhodes to account after years of promoting the violent use of arms against the United States government. What’s more, the verdicts send a message to others charged with the same offense facing trial later this month, including additional members of the Oath Keepers in one case and the leader and members of the Proud Boys in another, that at least one jury could be convinced to convict members of a domestic extremist paramilitary organization for seditious conspiracy based on the events culminating on January 6.

That said, just two of the five Oath Keepers who were tried on the seditious conspiracy charge were found guilty of it, although all five were convicted of obstructing an official government proceeding, as well as other offenses, that carry the same maximum 20-year sentence as seditious conspiracy. One might ask, then, whether it really was a victory for the Justice Department when three defendants were found not guilty of the lead charge. One might similarly ask why the government even bothered charging seditious conspiracy when the obstruction offense, which does not require proof of a conspiracy or proof of the use of force, is arguably easier to prove.

According to Department of Justice Guidance, before seeking charges, prosecutors must determine whether the prosecution would serve a substantial federal interest. This can hardly be in question for an attack on the seat of federal government, against the two houses of the legislative branch meeting in a joint session to count the Electoral College ballots that determine the presidency. Department guidance further requires, when a decision to prosecute is made, that “the government should charge and pursue the most serious, readily provable offenses.” The government must believe that the admissible evidence will probably be sufficient to prove every element of the offenses charged beyond a reasonable doubt.

It can be a tough decision for the Department to charge seditious conspiracy despite strong evidence that would prove the crime, because the Department’s track record is simply not good when it comes to charging this offense against domestic paramilitary and white nationalist organizations. A prosecution against a Christian nationalist militia in a federal court in Michigan in 2012 foundered at trial. The indictment alleged the group, called the “Hutaree,” were conspiring to kill a law enforcement officer in order to draw additional law enforcement officers from across the nation to the funeral, where the Hutaree would use explosives to attack them and thereby catalyze a more widespread uprising against the government. The plot was thwarted before any law enforcement officers were killed, and the trial judge dismissed the case after trial, concluding that the government’s evidence of speeches by the group’s leader and participation in military-style training were largely protected speech and association, and that their plot against local law enforcement was insufficient to establish a conspiracy to forcibly oppose the authority of the United States government. Going further back, the Justice Department’s seditious conspiracy charges against members of the KKK and Aryan Nations for plotting to overthrow the government and establish an all-white nation in the Pacific Northwest resulted in acquittals after a jury trial in Arkansas in 1988 (although the defendants were serving long sentences for other violent crimes related to their white-supremacist activities). And going much further back, a jury in New York in 1940 acquitted members of the “Christian Front,” an anti-Semitic paramilitary organization founded by the Reverend Charles E. Coughlin to engage in warfare against Communists and Jews. (Seditious conspiracy charges against Islamist extremists who plotted violent jihad against the United States, on the other hand, have fared better.)

The Department of Justice made the right choice in charging seditious conspiracy — despite the three acquittals and despite the fact that the offenses for which all were found guilty carry the same penalty. First, we know that this jury spent three days carefully parsing the evidence against each of the five defendants charged with multiple felony offenses. It is not surprising to prosecutors that jurors sometimes use their verdicts to align their own judgments about relative culpability in a conspiracy, even when evidence is sufficient to prove the charges against all defendants. Although we may never know for sure, as jury deliberations are secret unless the jurors themselves choose to discuss them, it would not be outrageous for them to determine that the evidence of seditious conspiracy was strongest against the Oath Keepers leader, Stewart Rhodes, and the Florida chapter leader, Kelly Meggs. The acquittals of three, especially in light of the multiple felony guilty verdicts against all five, do not signal that the Department was wrong to bring seditious conspiracy charges.

Second, as mentioned above, seditious conspiracy best fits the evidence of what led to and culminated on January 6. The evidence the government introduced showed coordination and planning starting right after the 2020 election. And importantly, unlike the case against the Hutarees in 2012, the evidence did not leave the jury guessing whether the defendants were just engaging in violent hyperbole with no intent to act upon it. To the contrary, the defendants did what they planned to do—they engaged in a forcible attack on the U.S. Capitol that did both “hinder” and “delay” the execution of the laws of the United States. The counting of the electoral ballots was halted for approximately six hours while members of both the House and Senate, including Vice President Mike Pence, fled the House chambers and took cover in safer locations. It was only after the National Guard assisted local law enforcement in clearing the Capitol of attackers and re-establishing order that Congress could resume its constitutionally required duty.

And third, at least as to Rhodes, it was important to hold him accountable for exactly what he has been advocating, training, and conspiring to do for years. Putting aside his and the Oath Keepers’ involvement in armed standoffs against federal agents over federal land management in Bunkerville, Nevada, in 2014, and elsewhere in the western states, Rhodes has been agitating for violence against the government on a different scale in recent years. In October 2019, as the U.S. House of Representatives was investigating the events that led to the first impeachment of President Trump, the Oath Keepers publicly announced their intent to come to Trump’s defense should there be an attempt to remove him from office. Rhodes told the Oath Keepers’ 24,000 Twitter followers that all the president needed to do was call them up: “We WILL answer the call,” he tweeted. He also threatened violence, stating that the Oath Keepers’ “favorite rifle is the AR 15.” When Trump suggested in a tweet that his removal could cause a civil war and that the impeachment proceedings were a “COUP,” Rhodes urged his Twitter followers to read Trump’s tweets, arguing: “This is where we are. We ARE on the verge of a HOT civil war.” Rhodes’s meaning was clear—even if the impeachment process established by the U.S. Constitution were to result in conviction by the Senate, Rhodes was prepared to command his unauthorized paramilitary organization to violently wage war against those attempting to carry out the president’s removal from office.

By early 2020, just after a fall 2019 election in which Democrats won the governorship and both houses of the Virginia state legislature, Rhodes was encouraging insurrection against the state government should there be an attempt to enforce new gun-safety legislation. The Oath Keepers announced in January 2020 that the group was deploying to Virginia to “focus on helping Sheriffs raise and train an official armed posse in each county, under command of the Sheriff, and on organizing, training, and equipping official county militia, under the authority of the county government.” Never mind that there is no authority under federal or state law for private groups or counties to create their own militias operating outside the command of the governor; Rhodes expected these militias to forcibly oppose the governor. On a now-deleted webpage, the Oath Keepers claimed these county-level militias would be in “resistance to the unconstitutional and dangers[sic] actions of the Governor” and urged every county to create one because “when a town or county government stands up, that pits one government entity against another.”

It’s no wonder, then, that Rhodes would be at the forefront of organizing to forcibly oppose the execution of U.S. laws when Trump sought to remain in office after losing the 2020 election. On November 10, 2020, Rhodes told Alex Jones, of Infowars, that the Oath Keepers already had men “stationed outside D.C. as a nuclear option in case they attempt to remove the president illegally.” By early December, Rhodes encouraged Trump to invoke the Insurrection Act, pledging that the Oath Keepers and their allies would otherwise have to take matters into their own hands. As January 6 drew closer, Rhodes announced that the Oath Keepers would “show Congress that we the people will not stand for the election to be stolen to plant an imposter Chicom puppet in the White House. Stand now, or kneel forever.”

We now know, thanks to the evidence introduced at the Oath Keepers trial, as well as the work of the House Select Committee to Investigate the January 6th Attack on the United States Capitol, that the Oath Keepers, under Rhodes’s leadership and direction, did indeed take matters into their own hands. Trump never invoked the Insurrection Act (not that it would have been legal for him to manufacture an insurrection and then invoke the Act to call up private paramilitary organizations operating outside of governmental control), but the Oath Keepers violently assaulted the Capitol nonetheless, hindering and delaying the counting of the Electoral College ballots. Rhodes’s comments after the attack were among the most incriminating: “My only regret is that they should have brought rifles,” to which he added, “We could have fixed it right there and then.”

Indeed, the Rhodes prosecution is a template for the trial of Proud Boys leader Enrique Tarrio, who surely understands the significance of the Oath Keepers verdicts. The evidence expected to be introduced against Tarrio and his group is at least as compelling. Among the incriminating statements by Tarrio is his posting a message following a Proud Boys member asking at 2:39 p.m. on January 6, “Are we a militia yet?” “Yep,” Tarrio responded, followed by “Make no mistake … ” and “We did this ….”

The government rightly charged Stewart Rhodes and other Oath Keepers with exactly what they did: “knowingly conspire, confederate, and agree . . . by force to prevent, hinder, and delay the execution of any law of the United States.” Rhodes finally, and rightly, is being held to account. The Justice Department is on the right track to hold others to account in the coming weeks.

Photo credit: U.S. Attorney General Merrick Garland, alongside Department leadership, delivers remarks regarding verdict in the trial of several Oath Keepers leaders and members, at the Department on Justice on November 30, 2022 (Pete Marovich/Getty Images)