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What is Seditious Conspiracy?


FILE - This artist sketch depicts the trial of Oath Keepers leader Stewart Rhodes, center, and four others charged with seditious conspiracy in the Jan. 6, 2021, Capitol attack, in Washington, Oct. 6, 2022.
FILE - This artist sketch depicts the trial of Oath Keepers leader Stewart Rhodes, center, and four others charged with seditious conspiracy in the Jan. 6, 2021, Capitol attack, in Washington, Oct. 6, 2022.

The conviction on Tuesday of militia leader Stewart Rhodes in connection with the January 6, 2021 assault on the U.S. Capitol marks the first time in more than two decades that the Justice Department has successfully used a criminal charge known as "seditious conspiracy."

Rhodes, the founder of the Oath Keepers, an anti-government militia made up largely of military veterans and former law enforcement officers, was found guilty of seditious conspiracy along with Kelly Meggs, the head of the group's Florida chapter.

Three other Oath Keepers tried alongside Rhodes were acquitted of the sedition charge but were found guilty of other changes, including obstruction of an official proceeding.

All five face at least 20 years in prison.

Here is what you need to know about seditious conspiracy and the significance of the verdict in the Oath Keepers trial:

What is seditious conspiracy?

Enacted after the American Civil War of 1861-1865, the charge of seditious conspiracy includes two elements: conspiracy and sedition. Conspiracy is an agreement by two or more people to commit a crime. Sedition is defined as incitement or advocacy of insurrection against an established authority.

The federal law under which the Oath Keepers were charged defines seditious conspiracy as two or more people plotting "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 …"

In the Oath Keepers case, the charge was not that they conspired to overthrow the U.S. government but rather that they plotted to forcibly oppose the authority of the government and prevent the execution of the laws governing the presidential transfer of power.

Seditious conspiracy is among a handful of crimes related to attempts to overthrow the government, make war against the United States, or unlawfully oppose its authority, said Jordan Strauss, a former federal prosecutor who is now a managing director at Kroll, a security consultancy.

"In a literal, legal sense, it isn't the constitutional crime of treason, but it is up there with treason in terms of severity," Strauss said.

How rare is a seditious conspiracy prosecution?

Seditious conspiracy is notoriously hard to prosecute. The last time prosecutors successfully applied the statute was in 1995 when Omar Abdel Rahman and nine of his followers were convicted of seditious conspiracy and other charges in connection with a plot to bomb New York City landmarks.

The government's most recent seditious conspiracy prosecution failed, however. In 2012, a federal judge dismissed sedition charges against five members of a Michigan-based Christian militia for plotting to kill a police officer and then ambush attendees at his funeral. The judge determined prosecutors had failed to prove that the "defendants reached a concrete agreement to forcibly oppose the United States government."

"You can commit a lot of crimes and you almost necessarily have to commit a lot of crimes up to and on the way to committing seditious conspiracy, but for it to be seditious conspiracy it really has to be against the U.S.," Strauss said.

The January 6 attack sparked an internal debate among federal prosecutors over whether the action of right-wing groups accused of plotting the assault amounted to seditious conspiracy.

A decision to charge the Oath Keepers with sedition was fraught with risk that the jury would not convict. But in the end, prosecutors determined they had enough evidence to charge the group with seditious conspiracy, and the jury agreed with respect to two defendants, Strauss said.

"At bottom, if you have laws on the books but don't enforce them, many people start to wonder why you have laws on the books," Strauss said.

What did prosecutors need to present to win convictions?

Rhodes was arrested in January 2022 and charged with seditious conspiracy along with 10 other members of the Oath Keepers. It was the most serious charge leveled against a group of January 6 defendants.

To win a conviction, prosecutors had to demonstrate that Rhodes and others plotted together to block Congress from certifying Joe Biden's election on January 6, 2021.

"So basically, they had to find that there was an agreement between two or more people to forcibly try to prevent Congress from certifying the election on January 6 through the attack on the Capitol," said Randall Eliason, a former federal prosecutor and now a law professor at George Washington University.

While Rhodes remained outside the Capitol during the attack, prosecutors charged in court that he began preparing for the attack immediately after the presidential election, exhorting his followers to travel to Washington, buying weapons and equipment, and setting up a "quick reaction force" to deploy in case they were needed.

Defense lawyers argued that the government failed to produce evidence of any plan by the Oath Keepers to storm the Capitol. But prosecutors said they did not need to prove any such plan existed prior to the attack. To prove conspiracy, they needed to show that two or more people worked together to carry out an illegal act. In the months leading up to the attack, they said, Rhodes and his co-conspirators "discussed the need to use any means necessary, up to and including force, to oppose the transfer of power, and they began to focus on January 6 as a day of action for their objective."

In finding Rhodes and Meggs guilty of seditious conspiracy, the jury "decided that the ringleaders were responsible for the actual agreement and plan and the other three were more followers," Eliason said.

What are the implications of the verdict for other January 6 prosecutions?

Another group of Oath Keepers charged with seditious conspiracy and other crimes is set to go on trial on Monday. That will be followed by the trial of a group of the far-right Proud Boys, including their leader, Enrique Tarrio.

While each case stands or falls on its own facts, the latest verdict "does put some wind in the sails of the prosecutors," Eliason said.

"If you're the defense maybe you're feeling less good about your chances," Eliason said.