It Was Sedition

The Oath Keepers imagine themselves to be true patriots, but, as a jury of their peers found this week, their deeds were a crime against the United States.

Color photograph of Stewart Rhodes wearing an Oath Keepers helmet
Philip Pacheco / Anadolu Agency / Getty

It’s fitting that Merriam-Webster’s word of the year is gaslighting. Since a violent mob assaulted the U.S. Capitol on January 6, 2021, apologists have tried to argue that the thing everyone saw with their own eyes, captured in videos and photographs, simply wasn’t what it appeared to be.

If it was so violent, they say, why wasn’t anyone armed? But, of course, the images show rioters using flagpoles, baseball bats, and other things as weapons. Okay, but they weren’t carrying firearms. Except that now men who did bring guns have been convicted, and the House committee investigating the riot has produced evidence that many people were carrying firearms. Even more enduring a rebuttal has been this: If this was really an attempt to keep Donald Trump as president and prevent the inauguration of Joe Biden, why has no one been convicted of sedition?

Now that has fallen by the wayside, too. A jury in Washington, D.C., yesterday convicted Stewart Rhodes and Kelly Meggs, two leaders of the militia called the Oath Keepers, of seditious conspiracy.

Jurors returned a complex set of verdicts. They also found Rhodes, Meggs, and other leaders of the group guilty of obstructing the certification of the election and destroying evidence, but acquitted Rhodes of two other conspiracy charges and three others of seditious conspiracy charges. Rhodes’s lawyer said he would appeal the decision.

Sedition (or seditious conspiracy, as federal law defines the crime) is likely unfamiliar to many people, and for good reason: It’s extremely rare. The charge involves “conspir[ing] to overthrow, put down, or to destroy by force the Government of the United States … or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States.”

Sedition is related to but separate from treason, which involves aiding the nation’s enemies. The term was used far too loosely during the Trump years—most prominently by the president, though also sometimes by his critics—but it has an actual legal meaning and is seldom charged, because it’s very hard to prove. Similarly, what happened on January 6 was an insurrection in the plain English sense, but the formal charge of insurrection is seldom brought. (Ironically, Rhodes has been a promiscuous source of flimsy accusations of insurrection.) Earlier this year, the law professor Carlton Larson explained why seditious conspiracy is a sensible charge in this case.

Tellingly, the federal law against seditious conspiracy dates to the Civil War; on January 6 of last year, rioters carried the Confederate battle flag in the halls of the Capitol, a desecration that never happened during the war. But actual cases are few and far between, in part because instances of seditious behavior that actually amount to anything—much less a ransacking of the Capitol—are rare. The last time the government successfully prosecuted someone under the charge was in a mid-1990s case against the radical Muslim cleric Omar Abdel-Rahman and some followers for a plot to bomb New York City landmarks. In 2010, the Justice Department charged members of a bizarre far-right militia called the Hutaree with seditious conspiracy, but they were acquitted two years later.

These rare successes made some observers wonder whether DOJ had erred in bringing the charge against the Oath Keepers, either because it might be too hard to prove or because it might open the door up to dubious future prosecutions. But the convictions offer some vindication for the decision. Not only did the prosecutors succeed in convicting Rhodes and company, but by convicting him of this particular charge, they put the lie to the idea that what happened on January 6 was simply a few overzealous people who got a little excited but posed no threat to the peaceful transfer of power. It also shows why the riot at the Capitol was not equivalent to violence that broke out in cities in summer 2020 after the murder of George Floyd, which was lawless but not part of any conspiracy against the federal government.

The verdict should also puncture the central claim of the Oath Keepers, an organization that gradually transformed from a sort of quietist movement into a more radical and violent force over the course of Trump’s presidency. Rhodes, a Yale-educated lawyer, and the group claim to be the true patriots. The name refers to the oath that service members take to “support and defend the Constitution against all enemies, foreign and domestic.” As a jury of their peers concluded this week, it turns out they were the real domestic enemies of the Constitution.