In the Oath Keepers’ second trial, the seditious-conspiracy charges are overkill.
Two months after the split verdicts in the Justice Department’s first seditious-conspiracy prosecution against members of the Oath Keepers group, a federal jury in Washington, D.C., found four members guilty on Monday. I wrote about the verdicts in the first case here. I don’t want to beat a dead horse (at least, not too much), so I will simply observe that, if you hang in there long enough with the New York Times coverage (about 14 paragraphs in), the following is reported:
Over the course of both trials, lawyers for the Justice Department argued that the Oath Keepers had for months expressed a desire to help [then-President] Trump remain in power even after his election loss, and that they had positioned themselves in Washington on Jan. 6, ready to back the former president as an armed militia if Mr. Trump authorized them to.
Right. The Capitol riot theory that you heard from the Democratic-controlled House January 6 committee for a year-and-a-half was that former president Donald Trump ordered his followers to attack the Capitol. To the contrary, the theory espoused by Justice Department prosecutors who actually have to prove things was that the riot leaders had long-standing grievances against the government and exploited Trump’s “stolen election” nonsense as a pretext to carry out an attack that they were planning to carry out anyway.
Neither Trump nor anyone in his campaign was alleged to be an unindicted coconspirator in the Justice Department’s seditious conspiracy prosecutions. Prosecutors do not claim that Trump’s provocative speech on the Ellipse — in which he explicitly called for peaceful protest, a fact that was whitewashed from the House committee’s public presentations — incited the Oath Keepers. And while the above excerpted passage from the Times report relates that the conspirators were hoping that Trump would invoke the Insurrection Act and call them out as a militia, what goes unmentioned is that Trump did not do so — and that Oath Keeper efforts to make contact with Trump went ignored.
Again, this excuses neither Trump’s outrageous behavior following the 2020 Election, nor his failure to take swift, decisive action to quell the riot (to the contrary, he made things worse by, for example, encouraging people to come to Washington, encouraging them to exert political pressure on Congress to refrain from performing its constitutional duty to count state-certified electoral votes, and texting that he’d been betrayed by Vice President Pence even as the siege was underway). These things formed a proper basis for impeaching him (although the Democratic-controlled House failed to conduct an investigation and incompetently drafted an impeachment article — “incitement of insurrection” — that was rife with error, failed to allege the impeachable misconduct, and was essentially agitprop designed to smear all Trump supporters as white-supremacist radicals).
Nevertheless, the seditious-conspiracy charges are overkill, brought by the Biden Justice Department to appease the Democrats’ Trump-obsessed base and to the project the Democratic messaging that Trump not only intended but led a violent insurrection against the United States. It is not enough to say the Justice Department’s evidence does not support that claim; the Justice Department hasn’t even made that claim.
As the Times notes, simultaneous to the Oath Keepers’ second trial, some members of the Proud Boys group are being tried in the same courthouse on seditious-conspiracy charges arising out of the Capitol riot. Mutatis mutandis.