The jury concludes that there was a spontaneous riot at the Capitol, rather than an elaborate plot to make war on the United States.
The jury concludes that there was a spontaneous riot at the Capitol, rather than an elaborate plot to make war on the United States.
I t wasn’t an elaborate, multilayered plot. It wasn’t democracy hanging by a thread. It was a mob run amok, a riot. It was dangerous for those on the scene, and it was notorious because it happened at the Capitol instead of, say, on the streets of Minneapolis. But it was a spontaneous, chaotic, nearly pointless tantrum that had no chance of achieving even the nebulous, short-term aim of preventing Congress from counting state-certified electoral votes, much less of overthrowing America’s constitutional order.
Oh, and to hear prosecutors tell the story of January 6, Donald Trump had precious little to do with the whole thing.
These are the only logical conclusions to draw from the verdicts returned Tuesday afternoon by a jury in deep blue Washington, D.C. The panel acquitted three of the five Oath Keeper defendants whom the Justice Department overheatedly charged with seditious conspiracy — the crime of agreeing to levy war against the United States, or to forcibly oppose its authority. The jury did return seditious-conspiracy convictions against the Oath Keepers’ national leader, Stewart Rhodes, and his confidant, Kelly Meggs, who headed up the loose-knit organization’s Florida chapter. Yet jurors acquitted Rhodes on a charge of conspiracy to disrupt the January 6 joint session of Congress — the objective that, according to prosecutors, drove the seditious conspiracy.
On the other hand, all five defendants — Rhodes and Meggs, along with Kenneth Harrelson, Jessica Watkins, and Thomas Caldwell — were convicted of what should have been the main charge in the case: the actual obstruction of a congressional proceeding. Like the superfluous seditious-conspiracy charges, obstruction carries a potential penalty of 20 years’ imprisonment; by itself, it would have provided more-than-adequate punishment for the defendants’ actions. Unlike conspiracy, actual obstruction need not entail a plan, much less a serpentine scheme to destroy our republic. Again, it was a better fit for what happened at the Capitol on January 6, which was chaos.
The verdicts seem irrational, but that is because the prosecution was irrational. To pull off even the nominal victory of nailing Rhodes on seditious conspiracy, the Justice Department had to present the case as if former President Trump was, at most, a bit player. In its way, this was as skewed a portrayal as that presented by the hyper-political, Trump-obsessed House January 6 committee, which would have you believe the former president directly and intentionally ordered his militant loyalists to attack the seat of government.
To the contrary (as we’ve previously detailed), the prosecutors concluded that Trump was not a member of the conspiracy and played no criminally culpable role in the violence. They depicted Trump as a mere pretext for the riot, rather than its orchestrator. In this telling, his election defeat and subsequent “stolen election” hogwash were the convenient excuse exploited by the Oath Keepers to rationalize an anti-government attack they’d begun contemplating long before the 2020 presidential campaign.
And in the end, the jury didn’t even buy that story. Rhodes never even entered the Capitol. A former Army paratrooper and Yale Law School grad, he is a crank who attended “stop the steal” rallies and pleaded in letters to Trump for the then-president to invoke the Insurrection Act in the delusional hope that his motley group could then be called into service as a militia (the letters were apparently ignored). Though Rhodes got the headlines, his friend Meggs appears to have been more culpable: Besides the seditious-conspiracy conviction, Meggs was also found guilty of conspiring to disrupt the congressional proceeding — an odd result given that, as a matter of law, it takes at least two people to conspire, but only he was convicted of that latter charge. Like Rhodes, the 68-year-old Caldwell — a U.S. Navy veteran who denied membership in the Oath Keepers and aptly described himself as a “bit of a goof” in trial testimony — also never made it to the Capitol. Harrelson and Watkins did storm the building with other rioters; like Caldwell, though, they were found not guilty of seditious conspiracy because the jury was convinced by their lawyers’ contention that the riot was an ad hoc eruption, rather than the result of a plot.
Tellingly, despite the weakness of their case, prosecutors did not call as witnesses the three Oath Keepers they’d squeezed into pleading guilty to seditious conspiracy. The Justice Department does not leave cooperating witnesses on the sidelines if it assesses that they will help prosecutors’ case. Plainly, although the government’s conspiracy proof was badly in need of shoring up, the DOJ decided that the defendants who’d sought leniency by pleading to conspiracy would not be able to explain what they and their supposed collaborators had done to commit conspiracy.
It is also worth observing that the jury in the case did not hesitate to convict the defendants of those charges for which the government had sufficient evidence. Three of the defendants were found guilty of interfering with police as they tried to respond to a civil disturbance. All five were convicted of tampering with official documents and proceedings. The jury, however, rejected the contention that a right-wing militia had waged war against the government, because the government couldn’t prove it.
As detailed before, I prosecuted the last successful seditious-conspiracy case brought by the Justice Department, decades before the Capitol riot cases. That was the 1995 trial of jihadists who bombed the World Trade Center and were thwarted while mixing explosives as they plotted to blow up other New York City landmarks. My team was not any more skilled than the able prosecutors in the Oath Keepers case. We were just more realistic about our evidence, and we were not under any political pressure to make something that was plenty bad enough seem even worse. It is the exceedingly rare trial that hinges on the skill of the lawyers; criminal cases come down to evidence.
My case involved unambiguous enemies of the U.S. who not only expressly declared themselves to be at war with our country, but trained and recruited for forcible attacks on it and then carried them out over the course of what turned out to be years. It was textbook seditious conspiracy. By contrast, in the 160 year-history of the seditious-conspiracy statute, we’ve never had a case in which the defendants could plausibly argue that, far from opposing the United States, they were trying to save it at the behest of the government’s top official, the president. That is why the Justice Department had to downplay Trump’s role in the riot to a nigh-parodic extent. When you attempt to try a case based on an unrealistic portrayal of what happened, you’re apt to get disappointing results.
What happened on January 6 was reprehensible. It is a blight on the history of the United States, whose proud boast is our tradition of peacefully transferring power from one administration to the next. Riots are terrible, but a riot is not a war. The Capitol uprising was a riot. It was over in a few hours, Congress reconvened in the Capitol to count the votes, and President Biden was confirmed as the winner, as it was inevitable he would be.
Of course, that’s not the story you’ll hear. The Justice Department’s press release does not mention the word acquittal. It reads as if prosecutors pitched a shutout. Echoing that storyline, the media-Democrat complex would have you believe that prosecutors won sweeping seditious-conspiracy convictions against militants who plotted to keep Donald Trump in power. You’d never know that the DOJ mostly lost on the main charge, that the verdicts overall were a mixed bag, and that Donald Trump — whose name doesn’t appear anywhere in the DOJ’s press release — was not even alleged to be criminally culpable.
History is written by the victors. That doesn’t make it accurate.