Just a few weeks after the Capitol riot nearly derailed the election process, the Department of Justice has begun putting together its first serious case of conspiracy. An indictment dropped yesterday charging nine “Oath Keepers” of conspiring to interfere with an official proceeding, among other charges. Prosecutors and the grand jury did not return any explicit charges of sedition, but the indictment itself makes it plain that they will argue that as motive:
Federal prosecutors have charged nine members of the Oath Keepers — an extremist militia that allegedly played a leading role in the Jan. 6 assault on the Capitol — with conspiring to delay the certification of the presidential election.
Leveling the most sweeping charges since the insurrection, the Justice Department accused the nine militia members of coordinating efforts to storm Congress and noted that they openly discussed maintaining a cache of “heavy” weaponry just outside of D.C. limits. …
Private text and audio messages show that multiple members of the group claimed to be acting on then-President Donald Trump’s cues, interpreting his call for a “wild” protest on Jan. 6 as an invitation to come stop the certification of Joe Biden’s victory.
“Trump said It’s gonna be wild!!!!!!! It’s gonna be wild!!!!!!!” Kelly Meggs, 52, a leader of Florida’s Oath Keepers, told a Facebook contact in a private message, according to the indictment. “He wants us to make it WILD that’s what he’s saying. He called us all to the Capitol and wants us to make it wild!!! Sir Yes Sir!!! Gentlemen we are heading to DC pack your shit!!”
And when then-Vice President Mike Pence rejected calls to unilaterally block Biden’s win, one of the leaders of the group, Thomas Caldwell, 65, told his collaborators they were “screwed.”
“Pence has punked out,” the Virginia resident texted at 2:06 p.m., adding, “Teargassing peaceful protesters at capital steps. Getting rowdy here.”
As always, indictments are not convictions. Prosecutors have to prove these charges in court, and defendants have an opportunity to present their own case in their defense. Thanks to their digital communications, which the FBI seems to have little trouble uncovering, despite attempts by the defendants to scrub their accounts, these nine might end up presenting both sides of the case. The indictment contains two counts of tampering as well as the other charges associated with the riot itself. It’s quite amazing how much of this indictment relies on evidence that the defendants created in on-line conversations planning this attack, at least on their own parts. That may be why it’s only taken a few weeks to put together a conspiracy case, which is normally a tougher charge to substantiate.
After reading through these communications, one has to wonder why the DoJ demurred on sedition charges. In paragraph 74b, for instance, the conspirators discussing seizing Congress in “citizen’s arrest” for “treason”:
An individual directed, “You are executing citizen’s arrest. Arrest this assembly, we have probable cause for acts of treason, election fraud.” WATKINS responded, “We are in the mezzanine. We are in the main dome right now. We are rocking it. They are throwing grenades, they are fricking shooting people with paint balls. But we are in here.” An individual responded to WATKINS, telling her to be safe, and stated, “Get it, Jess. Do your fucking thing. This is what we fucking [unintelligible] up for. Everything we fucking trained for.”
That would seem to satisfy the conditions of 18 USC 2384 for seditious conspiracy, especially given the militarized aspect of the plot. The defendants discussed their “QRF” — quick reaction force — as the “heavy” armed component of their plan to effect these arrests, if needed. That part of the plan had been in place for at least a week before the assault on the Capitol:
46. On December 3l, 2020, KELLY MEGGS wrote a series of messages to another person on Facebook that said, “You guys Gonna carry?” and “Ok we aren’t either, we have a heavy QRF 10 Min out though.” …
54. On January 3, 2021, WATKINS and BENNIE PARKER discussed the uniforms, gear, and weapons they would wear and bring on January 6, 2021:
WATKINS to BENNIE PARKER: We are not bringing firearms. QRF will be our Law Enforcement members of Oathkeepers.
BENNIE PARKER to WATKINS Good to know.
WATKINS to BENNIE PARKER: Pack Khaki/Tan pants. Weapons are ok now as well. Sorry for the confusion. We are packing the car and heading your way shortly
BENNIE PARKIR to WATKINS: We don’t have any khakis We have jeans and our b d u’s So I can bring my gun?
So why not go the full mile and charge them with sedition? Perhaps prosecutors will eventually add that charge; it carries a potential 20-year term, as opposed to 18 USC 371 (Conspiracy to commit offense or to defraud the United States), which only carries a five-year penalty. On the other hand, the second count under 18 USC 1512(2)(c) carries the same 20-year penalty as seditious conspiracy when “the threat of use of physical force against any person” is involved (and 30 years when connected to the death of another, which this indictment does not allege). Prosecutors might well believe they can get the same sentence while making a more straightforward case without playing into a defense strategy of justification in the wake of an allegedly “stolen election.”
The DoJ might also be worried about resource drains in the wake of the Capitol riot. They will be bringing hundreds of cases, perhaps thousands of them, and just the court time alone will quickly evaporate as these indictments pile up:
Justice Department officials are adding prosecutors and agents to their sprawling investigation into the Jan. 6 assault on the Capitol as it moves into a more complicated phase and they strategize about how to handle the large caseload, including trying to stave off a potential backlog in the courts, according to law enforcement officials. …
The investigation has already resulted in charges against more than 230 people and in scores of subpoenas. More than a dozen federal prosecutors from around the country have been assigned to work with the U.S. attorney’s office in Washington, which is leading the investigation, and it could lead to 400 to 500 criminal cases in total, according to a law enforcement official.
Part of that problem is that the FBI has pretty much harvested all of the low-hanging fruit — the people who posted videos of themselves and others committing crimes, who bragged about it to friends and on social media, and so forth. Now they want to go after organizers, such as with these Oath Keepers, but that will take more time and effort.
However, prosecutors are willing to play Monty Hall with the lowest-hanging fruit:
Major criminal investigations often depend on intelligence from informants and cooperating witnesses, current and former prosecutors say. But the riot investigation, which has been highly unusual in many respects, has resulted in hundreds of charges with little cooperation from people involved and has instead been based almost entirely on evidence gathered from social media and tips from family members and acquaintances.
To file more serious charges accusing suspects of organized plots to overturn the election, the government may need the cooperation of those already swept up by the F.B.I. who might want a lesser sentence.
“Cooperators are the de facto experts on a crime because they’re on the inside of a conspiracy,” said Glenn Kirschner, a former prosecutor in Washington who focused on homicide and racketeering cases. “They can bring direct evidence to the jury about who was playing what role inside; what the hierarchy was; and what the structure was inside the organization.”
So far these conspirators have refused to cooperate, but that hasn’t been universal amongst the rest of the suspects. For instance, Proud Boy member Dominic Pezzola announced his intention in a court filing this week to cooperate with prosecutors and “make amends,” proclaiming himself “consumed with guilt.” When some of the others start realizing that they got suckered into serious hard time in prison, the dam may well break in a hurry as lawyers convince their clients to get the best deal they can while they can.
That’s how conspiracies usually fall apart, seditious or otherwise. And given the speed in which the DoJ has already gotten to the organizer stage of this investigation, expect that dam to break sooner rather than later.