Congress, Constitutional Law, Criminal law

The Oath Keepers: What the Indictment Says and Does Not Say About the January 6 Riot

The indictment of eleven individuals associated with the “Oath Keepers” produced an immediate deluge of the postings that an insurrection had finally been established on the January 6th attack at the Capitol. The charges do not establish an insurrection. It does reveal how extremist groups show the protest as an opportunity and hoped that it might trigger greater unrest. However, the indictment does not offer the long-sought proof of an insurrection to fulfill the narrative of many commentators and politicians. While I would not be surprised by additional charges against other co-conspirators and more details could emerge, the indictment does not support the prior allegations of a coordination or collusion with the Trump campaign. Here is a first take on what the indictment says and does not say.

Is this the Insurrection?

Before addressing the details of the indictment, it is important to state the obvious about this indictment and how it is already being spun as proof of an insurrection. It is not.  These are charges of seditious conspiracy based on efforts to disrupt the proceedings. There was discussion among some of the defendants about the prospects of civil war, particularly after January 6th. However, the charge itself is much broader.

The provision in 18 U.S.C. 2384 has long been controversial because it is so sweeping and includes any effort “by force to prevent, hinder, or delay the execution of any law”:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, 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 contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

When most of us discussed the riot previously, we noted that there were people who clearly came to the Hill that day to commit violent acts and interrupt the legislative process. Indeed, most of us predicted that a small group of people would receive the more serious charges.

I have never had much sympathy for those who rioted or those who recklessly fueled such anger. Saying that this was not an insurrection does not mean that this was not a desecration of our constitutional process and values. I publicly condemned Trump’s speech while it was being given and I called for a bipartisan vote of censure over his responsibility in the riots.

The charging of a relatively small number of extremists in this large protest belies rather than supports the broader allegations of an actual insurrection. This remains a protest that became a riot — a view shared by the vast majority of the public. Over seven hundred people have been charged and most face relatively minor charges of trespass and unlawful entry. The fact that there were a small number of people intent on violence does not convert the intent or actions of the thousands in the protest into an insurrection.

FBI sources previously told the media that, despite months of intense investigation, they could find “scant evidence” of any “organized plot” and instead found that virtually all of the cases are “one-offs.” One agent explained: ”Ninety to 95 percent of these are one-off cases. Then you have 5 percent, maybe, of these militia groups that were more closely organized. But there was no grand scheme with Roger Stone and Alex Jones and all of these people to storm the Capitol and take hostages.”

This is clearly part of that five percent that the FBI and most of us have been discussing. Their views or intentions do not convert hundreds of defendants from trespassers into insurrectionists.

The same is true for rioters in prior summers. We have seen anarchist and extremist groups like Antifa come to protests to fuel violence. This small number of individuals often discuss (as did these defendants) a desire to see an overthrow of the government. They tried to further such objectives by burning police stations and trying repeatedly to burn down a federal courthouse. However, their intentions did not convert the thousands of other protesters into rioters or insurrectionists. Even these extremist groups have not been called domestic terrorists or seditionists by the media or Democratic politicians.

The Indictment and Likely Trial Issues

The indictment itself details the same extremist rhetoric and calls that we have seen from extremist groups on both the left and right in past years. It is an unsettling part of this age of rage. The defendants adopted pseudo military jargon and beat their chests about the coming civil war. It is important not to dismiss the danger that such groups pose. They come across at points as clowns but this is why clowns can be so scary. They are clowns who openly discussed storing weapons and fostering a civil war. The indictment details evidence that most of these men entered the Capitol and encouraged the rioting. Most of the charges are similar to those in other cases in that respect and seem well-based.

It is really the first charge that has drawn the most attention and is likely to draw the most litigation.  However, as discussed above, keep in mind that a conspiracy requires only two people to conspire by force to hinder the execution of any law.

Nevertheless, the Justice Department works hard to reinforce the view of this group as launching a military attack, using their own military jargon. It divides the group into “stacks” that “marched” on the Capitol.

Thus, Stack 2 (composed of just three people) is described as not walking but marching around the crowded grounds: “[Stack Two] breached the Capitol grounds, marching from the west side to the east side of the Capitol building and up the east stairs.”

The defense is likely to question these characterizations in pre-trial motions. Each “stack” was composed of a handful of people. Stack 1 was composed of Kelly Meggs, Kenneth Harrelson, Jessica Watkins, Jospeh Hasckett, and David Moerschel. Stack 2 was composed of just Joshua James and Robero Minuta. Then there is the ominous sounding “Quick Reaction Force,” which the indictment said was composed of only Thomas Caldwell and Edward Vallejo.

The indictment is strong on detailing the alleged violent rhetoric and machinations of the defendants. It shows men who speak of civil war and actively acquire weapons in the anticipation that they might be used.

However, as a criminal defense attorney, there are some gaps and disconnects that I expect could cause difficulties at trial on the sedition conspiracy charge. (The rest of the charges will be more difficult to contest on things like obstructing an official proceeding).

These are eleven people who were not armed with guns and some apparently never entered the Capitol. While the Justice Department discussed plans for river landings and arsenals of weapons and forces held in reserve, the individuals in Stack 2 were equipped with:

“battle apparel and gear, including hard-knuckle tactical gloves, tactical vests, ballistic goggles, radios, chemical sprays, a paracord attachment, fatigues, goggles, scissors, a large stick, and one of the Stack Two member’s 82-pound German Shepherd named ‘Warrior.’”

That is undistinguishable (and in some cases less lethal) than material seized from Antifa, Proud Boys, and other rioters in prior summers.  Despite buying and storing weapons, they did not bring them to the Hill, did not use them, and left the Hill with many others. Only one, Joshua James, is charged with the broad offense of “assaulting, resisting, or impeding certain officers.” (Count 8). The rest are charged with the common crimes of trespass, obstruction, and unlawful entry.

The indictment details discussions of a civil war after the riot. On January 12, 2021, James messages “after this, … if nothing happens, its war … Civil War 2.0.” There was no apparent follow through after January 6th with an actual attack or rebellion against the government.

 The indictment also does not allege the broader conspiracy often raised by politicians and pundits. The defendants themselves appeared to acknowledge that they were acting without coordination with the Administration or President Trump. Rhodes messages “All I see Trump doing is complaining. I see no intent by him to do anything. So the Patriots are taking it into their own hands. They’ve had enough.”

There may be more charges coming given the references to unnamed “co-conspirators.” For example, on page 18, Watkins is quoted in discussions with someone who is only referenced as a “co-conspirator.” It is not clear if that person is a cooperating witness or a soon-to-be-charged defendant.

There are other glaring issues for defense counsel, including the possibility that a couple of the defendants did not even participate in the actual riot at the Capitol building. That does not mean that they cannot be guilty of a conspiracy but it contradicts earlier published accounts.

The government, for example, previously held Caldwell as a key organizer of the attack and claimed that he entered the Capitol with his co-conspirators.  The indictment, however, omits that allegation and now lists Caldwell with the two-man “Quick Reaction Force.” A federal judge ultimately refused to continue to hold Caldwell over the objections of the Justice Department.

Those issues will have to be hashed out in the forthcoming criminal indictments. After such charges are brought, defendants are under overwhelming pressure to cooperate and reach a plea deal. We will have to see if that proves the case here or with any additional indictments.

Conversely, these defendants will be able to demand exculpatory evidence from the government. Indictments always look more ominous before they are subject to adversarial challenge. However, it will be difficult to rebut some of these charges on obstructing the process or damaging government property. It will be the seditious conspiracy count that will produce the greatest factual and legal challenges in the months to come.

Here is the indictment: Rhodes et al indictment

 

272 thoughts on “The Oath Keepers: What the Indictment Says and Does Not Say About the January 6 Riot”

  1. I would be very curious to hear Turley’s opinion on any connection with insurrection and the Declaration of Independence. (“It is their right, their duty”)…..with regards to exactly WHEN an insurrection might be warranted under the philosophy of the Founding Fathers. I also would like to hear his philosophy of a modern day application of the principles set forth by future President James Madison with regards to the purpose of the 2A and militias in Federalist 46 which clearly states that the purpose of the 2A is to enable the citizenry to overthrow an out of control government. How do you reconcile these clear indications that the Founding Fathers felt that insurrection might be a necessary evil in order for a free people to secure their freedoms against tyranny with the events and subsequent government reactions to a riot gone out of control – an event that was clearly NOT a conspiracy to foment an insurrection?

  2. First, the media and the administration are putting out a big lie about Oath Keepers. They are representing them (us) as a “far right militia” when in fact Oath Keepers is an organization of those of us who once swore an oath to protect the Constitution. Specifically, it is an organization for active military and veterans. Law enforcement is also accepted as full members. They are being painted with the usual left-wing brush because leftists are scared of them for the simple reason that members of the military and veterans are the one group who actually have the ability carry out actions in defense of the Constitution, as the Founders intended when they adopted the Second Amendment. The Administration is attempting to break the back of the very people it would have to depend on in the event of war. The FBI, or the leftwingers who run it, are trying to scare us by forcing those who have been indicted to plead guilty to something rather than going to trial. They did the same thing to Lt. General Flynn and they’ve been doing it to the average Americans they’re charging for simly entering the Capitol building. These are the descendants, literally and figuratively, of those who fought the rebellion against the British, fought them again at New Orleans and who resisted the invasion by Abe Lincoln’s army of German and Irish immigrants.

      1. You Oathkeepers gonna just keep talking tough, or do you intend to man up and actually start a civil war? Hurry up because I don’t want to miss it. If the Democrats steal another election from Trump, I take it that would be game on? Olly, where are you going to serve in the militia? At the barricades or behind the lines.

        1. Your anxiety is noted. However your need to know will just have to remain wanting. 😄

          1. Just for the record, I don’t believe your indicted brethren should get much jail time- no more a year just to teach them a little lesson because I don’t take you guys seriously. I’m afraid of the Atomwaffen Division. Now, those boys don’t play act.

            BTW, thanks for your service to our country.

            1. because I don’t take you guys seriously.

              That’s actually preferable.

              thanks for your service to our country.

              That’s kind of you. Thanks.

      2. As to the Oathkeepers,….all is not as it is being described about that group.

        I suggest you watch their video explaining who they are….what they stand for….and what motivates them.

        The Oath Keepers are made up of a lot of people….and just as we should not tar an entire group of folks with the same brush as we are told when there is Smash and Grab or Shooting of a Child…..that applies to the Oath Keepers as well.

        When Shep Smith and Geraldo agree with the Oath Keepers as they did during the aftermath of Katrina…..folks that should jingle some bells for you…..perhaps the Oath Keepers are not Right Wing Radicals as some seem to think.

        Watch the video…to the end….if for no other reason….for the usual Lefties here…..know your enemy!

        For those who reason rather than react like Pavlov’s Dog…..you might find it useful.

        https://www.oathkeepers.org

        1. One should not judge all Oath Keepers by the actions of a few. Eleven Oath Keepers have been charged with seditious conspiracy. Texts provided in the indictment showed that some Oak Keepers conspired to assault the capitol and disrupt the certification of electoral votes for Biden. Videos of the Oak Keeper stacks advancing on the Capitol are readily available

          1. “ One should not judge all Oath Keepers by the actions of a few.”

            I would agree with you, but we would both be wrong. The oath keepers are right wing extremists who took the lead in encouraging everyone in the Capitol to storm it. On this blog it is often the case that any actions by a few leftists is judged as what every left leaning individual believes or does. A very broad brush is applied every day. But when the same actions from righty extremist zealots are applied just as broadly is suddenly “only a few people”.

            Those oath keepers were taking cues from Trump and many believed he was telling them to do what they did. Many believed they would be pardoned by Trump until they weren’t. Trump was relying on them to do his dirty work

            1. “Those oath keepers were taking cues from Trump and many believed he was telling them to do what they did. ”

              One might think ATS was good at reading minds. He isn’t. He creates his own narrative. Anonymous the Stupid is not a credible individual.

  3. (I correct my 6:09 comment to the extent that I just found a comment referencing “witch hunt.” Sorry, stand corrected.

  4. I confess that I have not examined the matter and tookTurley st his word. It would not be the first time that Turley has been less than 100% on the level. I criticize the manner in which he now characterizes the Mueller investigation as having found no evidence of collusion when, in fact, there was collusion between Manafort and Kilimnik. In truth, the Report did not find sufficient evidence of a *criminal conspiracy* between known Russian agents and the Trump campaign. Nor does Turley qualify his assessment of the Report that Manafort and Stone were less than honest knowing that they would be pardoned if they did not flip. So, I agree with you that Turley does spin the truth like a good politician. Still, we cannot put Turley in the same category as the lying Trumpists who parrot the inveterate liar Trump.

    1. When you’re over the target, Lefties can’t help themselves; they just gotta spew rubbish.

      Best of luck, Jeff. You need to kick that bath salt addiction though..

    2. collusion to do what…Manafort and Kilimnik? But Manfort was not charged with anything related to Russia.

      1. And? Collusion can be a secret cooperation especially in order to cheat others. Manafort have sensitive polling data to a Russian agent in order to cheat in the election.

    3. “I confess that I have not examined the matter”

      We have heard you say that many times about almost every important issue. Then you talk, talk and talk saying nothing.

  7. JeffSilberman at 5:45: “Unlike Trumpists, he [Turley] does not call [the investigation] a ‘witch hunt,” Jeff, Jeff, I Iam not a Trumpist (although I agreed with many of his policies, particularly onimmigration–and so did SCOTUS,). However, I do not recall ANY Trump supporters calling it a “witch hunt” on this blog, -in fact, many of his supporters want to see the truthcome out. Thanks.

    1. Oh, come on! That’s bunk! They ALL think the Meuller investigation was a witch-hunt and many here have said so. Just ask them! They’ll not deny it unless they are lying. Whatever Trump says, they swallow; that’s a Trumpist. The truth is whatever Trump says it is. Loyalty is paramount.

      1. Jeff is a believer in the Steele Dossier. Despite all the proof including testimony Jeff believes in the lie. I guess we can believe him as he admitted not knowing much of anything.

  8. Jeff
    JeffSilberman at 3:51: I am comparing apples to apples and oranges to oranges, not apples to oranges, e.g., property destruction, vandalism, and desecration of government buildings. I neither mentioned threats to Pence nor threats to Trump during riots on his inauguation day. Petitio principii!,Thanks for your comment, though.

  9. These people DO have voting rights and can use them to change the government.

    I’ll set aside the fact you have no idea what there list of grievances are and commend you for acknowledging there is no current, systemic disenfranchisement of voter rights and therefore no reason to change the filibuster rules and/or federalize elections.

  10. Re: Jan 6th. Wonder if the administration hired Conrad Bean, Stanley Motss and Winifred Ames?

  11. There’s some questions about this case, like was the oath keepers org infiltrated by anti-American Creeps like southern poverty law center or others attempting to discredit them?

    Why hasn’t who ever “Q” is & Ray Epps been swat teamed at 5 am like Manaport & Stone, others?

    Anyway, Here’s a interview yesterday of Stewart Rhodes lawyer & later when posted on Banned.Video is of a former members comments on what he thinks is happening.

    ********

    Stewart Rhodes’ Lawyer Breaks Down the First Charges of Sedition in Jan 6 Investigation

    81,712 views

    ·

    Jan 13, 2022
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    The Alex Jones Show

    https://www.banned.video/watch?id=61e0b7cb45ca7670caafecd5

  13. The indictment is strong on detailing the alleged violent rhetoric and machinations of the defendants. It shows men who speak of civil war and actively acquire weapons in the anticipation that they might be used.

    When I read the list of grievances in the DoI, it’s understandable how citizens can become hostile to their own government, especially when that government has increasingly abused the rights of their citizens. At some point, as the DoI explains, the citizens are fully within their rights to alter and/or abolish the existing order. That founding generation also spoke of war and they actively stockpiled weapons should a war be necessary. It would seem that a small, 18th century group of “liberty-minded patriots”, preparing for war against the most powerful government on the planet, is acknowledged to have been just in their cause, but an even smaller 21st century group are some unhinged, domestic terrorists. The parallels shouldn’t be dismissed. Instead of simply bowing like Tories to the federal government for their indictment of alleged insurrectionist “clowns,” I would like to see what their list of grievances are that motivated them. Keep in mind the following:

    So, the most important and praiseworthy fact about the Founders which is rarely discussed is that they believed in a Higher Law than any government’s, and they did something about it. They evaded their government’s taxes and regulations. They delivered speeches and wrote pamphlets informing others, and they eventually overthrew their government and set up a new one more closely in agreement with Higher Law.
    https://mises.org/library/founding-fathers-smugglers-tax-evaders-and-traitors

          1. That’s how the Holy Spirit works when you’re not thinking about it. Not much different from how you have been endowed with natural rights.

            Oops only comes from your sinful nature.

            Anyway, well done!

  14. So a politicized DOJ attempts a legal beat down of a politically opposite group composed of well-armed men either trained in urban guerrilla warfare by that government or intimately aware of urban environs by virtue of their employment or both? What could possibly go wrong? Sometimes it’s scary to be a student of history.

  15. Silberman is “defending the professor” because he doesn’t want to disappear from the blog like “Ben Marcus” and others did. Have you noticed how suddenly Jeff is regularly and almost consistently noting,”I agree with Turley,” and pretends that his criticism was tied to “hypocrisy.” Bahhhh! Go back and look at silberman.s jabs at Turley over the past year and a half!

    2. Silberman has on a daily basis let us know that Turley is a shill for Fox and now he tries to use the professor’s arguments to substantiate his positions. Surely this will be declared as the next wonder of the universe. Silly, silly, silly.

  16. geocon1at 1:23:, I wholly agree with your comment, particularly, “keep your eye on the birdie.” I would loke to add that, looking to the past violent acts of BLM,Antifs, and other mobs, the indictments teach an important lesson: Set fire, burn, throw bombs and molotov cocktails, smash windows,loot and steal, spray-paint grafiti, jump on police cars, trash and litter the streets, and tear down structures and historic ststues, and vandalize government buildings with impunity,- but don’t you dare step on the blue-suede shoes of Democrats at the Capitol. (I am not in any way condoning the Jan. 6 riot, I’m still of age for Mother Goose, who taught “what’s good for the goose is good for the gander.)

    1. Lin says:

      “I am not in any way condoning the Jan. 6 riot”

      But you are pooh-poohing the attack as innocently stepping on the “blue-suede shoes of Democrats at the Capitol.” You are conveniently ignoring the fact of a lynch mob was hell-bent on getting their hands on the traitor Pence.

      1. JeffSilberman, wouldn’t lynching Pence have been an act of insurrection? First you say you don’t believe it was an insurrection and then you say they were trying to commit an act of insurrection. Some would call it having it both ways. Nothing new.

        1. I don’t consider lynching a lame duck VP an act of insurrection. It’s an act of murder (at least in the non-MAGA world that is). An insurrection is impossible unless the military joins in.

          1. JeffSilberman, until January 20 Pence was still part of an elected government with the power of an elected government. Let’s say that on January 2 we were attacked by a foreign nation. In such an instance would the sitting President have the right to declare war due to such an attack. What you might consider to be this or that means absolutely nothing. The reality is that an physical attack on the nations vice president by a political group should be considered an attempt of insurrection.

            1. Let’s not quibble over the legal definition of an insurrection. The bottom line is that it was, as Turley stated, a “reckless” speech by Trump for which he called upon Congress to censure him. Not a single Trumpist on this blog ever agreed with Turley’s condemnation of Trump’s speech much less expressed any support for a censure. Furthermore, Turley stated that Trump’s conduct on 1/6 was worthy of impeachment provided there was sufficient evidence of intent. He opposed the Democrats rushing to trial without gathering sufficient testimony. He called it a “snap impeachment.” I don’t recall any Trumpist here believing that Trump’s conduct was the least bit impeachable.

              Turley has indicated that he does not believe 1/6 was an insurrection on the strength of an FBI investigation which did not find such coordination. Fine. On the other hand, he does not regard the House investigation as illegitimate. Unlike Trumpists, he does not call it a “witch-hunt.” In fact, he has said almost nothing about the merits of the investigation notwithstanding a host of legal issues and claims of executive privilege pending in courts. One can only presume that he he does not believe that the House committee is acting illegitimately; otherwise, he would no doubt say so. His attitude is completely contrary to Hannity, Levin, Carlson and Ingraham, but Turley is not asked to appear on their programs to provide his contrary opinion. They call upon him only to rubber stamp Fox narratives with which he can in good conscience defend without sacrificing his academic credibility.

              Turley is definitely more on my side than yours.

              1. I’m not quite sure of the context of the word reckless, but Turley likes that word and uses that over and over again when talking about the Democrats in Congress. Just read his op-ed “Reckless Rhetoric Is A Reckless Standard For An Impeachment Trial”

                I don’t think Trump’s speech was reckless at all. One needs to listen to it, not read snippets taken out of context.

                https://www.wsj.com/video/trump-full-speech-at-dc-rally-on-jan-6/E4E7BBBF-23B1-4401-ADCE-7D4432D07030.html

                I’ll quote a small part: “The Democrats are hopeless — they never vote for anything. Not even one vote. But we’re going to try and give our Republicans, the weak ones because the strong ones don’t need any of our help. We’re going to try and give them the kind of pride and boldness that they need to take back our country.

                So let’s walk down Pennsylvania Avenue.

                I want to thank you all. God bless you and God Bless America.”

                Nothing bad there except maybe his use of the word God upset the leftists.

                Now one of the leftists will post a snippet to infer something that didn’t exist in his speech. That is why one needs to listen in context. Walking down Pennsylvania Avenue is not violent.

            2. Thinkitthrough: Correct, and I’m sure you noticed that I said nothing about –nor defended– insurrection in my comment. I merely talk about violence and property destruction on BOTH sides and the difference in treatment…I also made a later comment about DC prosecutors dropping all charges against nearly 200 protesters at Trump’s inauguration and thereafter (some reports show a higher number of dropped charges).

  17. Turley (and many of you) used to say no one had been charged with sedition. Now he’s saying it’s such a small matter that there’s really nothing to see here. I have my doubts as to how far Merrick Garland is willing to go with these prosecutions. I have no doubt that the men of the Oath Keepers won’t be the only ones.

    1. Who has assigned you to come on this site to continually try and discredit anyone who speaks sensibly about important issues of the day? After a while, it becomes white noise because you disagree simply to be disagreeable. While you certainly are welcome here, your comments belong more on Huffington Post than on a site where one can seriously contribute to an intelligent discourse.

      1. I am pointing out hypocrisy that you apparently don’t want to be made aware of. Just skip my posts lest you actually consider the information contained within.

  18. Turley isn’t nearly as informative as he could be. If you want to understand the new indictment in interaction with existing indictments, I recommend Marcy Wheeler’s analyses. Here’s a recent one of this indictment:
    https://www.emptywheel.net/2022/01/13/the-first-seditious-conspiracy-charges-drop/

    For example, Turley is silent about how the Oath Keepers and Proud Boys expected to provoke the “normies” into becoming violent.

    A quote from “U.S. v. Charles Donohoe 21-CR-175-4 (TJK)” (expletives altered to make it past the WordPress filter) —

    UCC-1: I want to see thousands of normies burn that city to ash today

    PERSON-2: Would be epic

    UCC-1: The state is the enemy of the people

    PERSON-2: We are the people

    UCC-1: F— yea

    PERSON-3: God let it happen . . . I will settle with seeing them smash some pigs to dust

    PERSON-2: F— these commie traitors

    PERSON-3 It’s going to happen. These normiecons have no adrenaline control . . . They are like a pack of wild dogs

  19. “The provision in 18 U.S.C. 2384 has long been controversial because it is so sweeping and includes any effort to “prevent, hinder, or delay the execution of any law”:”

    Sounds to me like this could be grounds for prosecution of a whole bunch of red-clad Handmaidens who disrupted the Kavanaugh hearings, not to mention the folks who rode the elevator with Republican Senator (was it Thune?) harassing him to vote against confirming Kavanaugh.

    Nah . . . the law only works one way . . .

  20. It is not an insurection when done by de jure Oregonians under Article I Section 1 Natural rights inherent in people. We declare that all men, when they form a social compact are equal in right: that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper. — Oregon’s Constitution circa 1859.
    One cannot be a Domestic Terrorist when one has stated they are “Oregon’s 2nd amendment well regulated militia.” The feds , state et al. acquiesce to that. We have the filed documents.

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