Criminal Justice

The Sedition Indictment Against 11 Oath Keepers Describes a Plot That Was Pitifully Inept and Ineffectual

This is the first time that participants in the Capitol riot have been charged with sedition.

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Eduardo Nicolas Alvear Gonzalez, the dude in American flag pants who was famously recorded smoking pot in the Capitol Rotunda on January 6, 2021, was charged a month later with four misdemeanors. He ultimately pleaded guilty to one count of parading, demonstrating, or picketing in the Capitol.

The legal consequences that Gonzalez faced for participating in the Capitol riot were pretty typical. The FBI has arrested more than 700 Donald Trump supporters who unlawfully entered the Capitol grounds or the Capitol itself that day, many of whom incriminated themselves by recording and/or livestreaming their activities. On the anniversary of the riot, The New York Times reported that "a little over 300" had been charged with petty crimes such as trespassing and disorderly conduct, while "more than 225 people" were "accused of attacking or interfering with the police" and "about 275" were charged with obstructing the congressional certification of President Joe Biden's election.

Against this backdrop, last week's indictment of 11 Oath Keepers stands out. It was the first time that any of the rioters had been charged with sedition—specifically, using force to "prevent, hinder, or delay the execution of any law of the United States." The conspiracy described in the indictment is notably different from the spontaneous, heat-of-the-moment crimes committed by most of the people who stormed the Capitol. Unlike the riot as a whole, which looked more like a temper tantrum than an incipient coup, the "operation" mounted by the Oath Keepers was planned well in advance. Although it is the closest thing we have seen so far to an "insurrection" (the label that Democrats routinely apply to the riot), it was still half-baked and pitifully ineffectual.

According to the indictment, the conspiracy began two days after the presidential election, when Oath Keepers leader Stewart Rhodes made it clear that he would not accept the results without a fight. "We aren't getting through this without a civil war," Rhodes said in a Signal group chat. "Too late for that. Prepare your mind, body, spirit."

The FBI describes the Oath Keepers, which Rhodes founded in 2009, as a "large but loosely organized collection of militia who believe that the federal government has been coopted by a shadowy conspiracy that is trying to strip American citizens of their rights." The group, which consists largely of military veterans and former law enforcement officers, is ostensibly dedicated to defending the Constitution. Rhodes saw violent resistance to Biden's election as very much in keeping with that mission, portraying the attempt to keep Trump in office as akin to the American Revolution and the mass protests that brought down Serbian leader Slobodan Milosevic.

The preparations for January 6 allegedly included gathering Oath Keepers from around the country; paramilitary training; "reconnaissance" of the Capitol area; multiple purchases of guns, ammunition, and firearm accessories; a stash of weapons at a hotel in Arlington; and a "quick reaction force" (QRF) that waited at the hotel, ready to act "if SHTF." The indictment says "the QRF teams were prepared to rapidly transport firearms and other weapons into Washington, D.C., in support of operations aimed at using force to stop the lawful transfer of presidential power."

Exactly how prepared they actually were is open to question. Four days before the riot, the Oath Keepers were still trying to figure out what they would do if the bridges across the Potomac River were closed. When Kelly Meggs, head of the group's Florida chapter, posed the question in a Signal chat, the indictment says, "the North Carolina QRF team leader wrote, 'My sources DC working on procuring Boat transportation as we speak.'" Thomas Caldwell, a Virginia Oath Keeper, sent this message to "his contacts":

Can't believe I just thought of this: how many people either in the militia or not
(who are still supportive of our efforts to save the Republic) have a boat on a trailer that [could] handle a Potomac crossing? If we had someone standing by at a dock ramp (one near the Pentagon for sure) we could have our Quick Response Team with the heavy weapons standing by, quickly load them and ferry them across the river to our waiting arms.

The indictment does not say what, if anything, came of that plan. In any event, the "QRF teams" remained at the Comfort Inn in Ballston. The Oath Keepers who went to the Capitol on January 6 evidently did not bring any firearms, although they did have "hard-knuckle tactical gloves, tactical vests, ballistic goggles, radios, chemical sprays, a paracord attachment, fatigues, goggles, scissors, a large stick," and a German Shepherd named Warrior.

The Oath Keepers were supposed to wear khaki or tan pants, which proved to be a problem. "We don't have any khakis," an unnamed "co-conspirator" told Ohio Oath Keeper Jessica Watkins on January 3. "We have jeans and our b d u's [battle dress uniforms]." The indictment says many of the Oath Keepers who joined the riot "were wearing paramilitary clothing and patches with the Oath Keepers name, logo, and insignia."

At the Capitol, the Oath Keepers, allegedly including several of the defendants, formed two "stacks," which joined the mob that had already broken into the building. "Shortly after 2:00 p.m.," the indictment says, "crowd members forced entry into the Capitol by breaking windows, ramming open doors, and assaulting Capitol Police and other law enforcement officers." Half an hour later, one group of Oath Keepers "marched in a 'stack' formation…up the east steps of the Capitol" and "stormed into the Capitol alongside the mob."

Police succeeded in pushing back half of the Oath Keepers in "Stack One," who "regrouped in the Rotunda and then left the building." The rest of Stack One "headed toward the House of Representatives, in search of Speaker of the House Nancy Pelosi." But "they did not find Speaker Pelosi and ultimately left the building."

Around 3:15 p.m., a second group of Oath Keepers ("Stack Two") approached the Capitol. According to the indictment, Alabama Oath Keeper Joshua James and New Jersey Oath Keeper Roberto Minuta "forced their way past law enforcement officers trying to guard the Rotunda," which they "briefly breached." James "was expelled by at least one officer who aimed chemical spray directly at [him] and multiple officers who pushed him out from behind." At 3:19 p.m., the indictment says, Minuta "yelled at a law enforcement officer" while "exiting the Capitol through the same east side Rotunda Doors that he had previously entered." Two minutes later, Georgia Oath Keeper Brian Ulrich and other members of Stack Two "entered the east side Rotunda Doors."

In an interview with The New York Times last July, Rhodes complained that the Oath Keepers who entered the Capitol had "gone off mission." He said "there were zero instructions from me or leadership to do so."

According to the indictment, however, Rhodes and other Oath Keepers celebrated the riot and talked about following it up with further acts of resistance. "Thousands of ticked off patriots spontaneously marched on the Capitol," Rhodes said that night in a Signal group chat. "You ain't seen nothing yet." Between January 10 and January 14, the indictment says, Rhodes spent about $18,000 on firearm parts, accessories, and ammunition. But apparently nothing came of whatever Rhodes might have been planning. He was not arrested until last Thursday, a year after the spending spree described in the indictment.

In a Signal message four days after the riot, the indictment says, Ulrich advised James that he and Rhodes should stay "below the radar." It was clearly too late for that, given the Oath Keepers' conspicuous participation in the riot and Rhodes' public endorsement of violent resistance to the election results. In addition to encrypted conversations between Rhodes and his followers, the indictment cites messages that he posted on the Oath Keepers website before the riot.

On Election Day, Rhodes publicly advised Oath Keepers to "stock up on ammo" and prepare for a "full-on war in the streets" if Biden were declared the winner. A week later, Rhodes posted a "call to action" under the headline "WHAT WE THE PEOPLE MUST DO." It described elements of the revolt against Milosevic, which included not only "peaceful protests" and "complete civil disobedience" but also "swarm[ing] the streets," "confronting the opponents," "storm[ing] the Parliament," and "burn[ing] down fake state Television."

In a December 23, 2020, message on the Oath Keepers website, Rhodes said "tens of thousands of patriot Americans, both veterans and non-veterans, will already be in Washington D.C., and many of us will have our mission-critical gear stowed nearby just outside D.C." He warned that he and likeminded patriots might have to "take to arms in defense of our God given liberty."

So much for staying below the radar. Rhodes' lack of discretion was not his only problem. It remains unclear exactly how he hoped to keep Trump in power.

If Biden took office, Rhodes warned in a Signal chat on December 11, 2020, "it will be a bloody and desperate fight. We are going to have a fight. That can't be avoided."

In another Signal chat two weeks later, according to the indictment, Meggs said "we need to make those senators very uncomfortable with all of us being a few hundred feet away." Rhodes replied: "I think Congress will screw [Trump] over. The only chance we/he has is if we scare the shit out of them and convince them it will be torches and pitchforks time is they don't do the right thing. But I don't think they will listen."

The plan, evidently, was to "scare the shit" out of Congress with a show of force that would persuade legislators to reject electoral votes for Biden. But in the end, the Oath Keepers merely joined a riot that was already in progress, and the riot itself accomplished nothing but an interruption that delayed ratification of Biden's victory until that night.

It obviously could have been much worse. If Oath Keepers had attacked the Capitol with guns, there could have been bloodshed on both sides, although that still would not have compelled Congress to do what Rhodes wanted.

The sedition charges do not require that the defendants had any realistic hope of success. Assuming the allegations are true, Rhodes et al. did indeed conspire to use force to "prevent, hinder, or delay" the execution of Congress' constitutional and statutory obligations to certify the election results. And in addition to the sedition counts, which are punishable by up to 20 years in prison, the defendants face various other charges, including conspiracy to obstruct an official proceeding, assault, destruction of government property, interference with law enforcement, and tampering with evidence (mainly by erasing incriminating data on their cellphones).

The Justice Department estimates that as many as 2,500 people may ultimately face charges in connection with the Capitol riot. Most of them will be more like Gonzalez, the "Capitol Doobie Smoker," than Rhodes and his followers, who had ambitious but inept plans that ultimately amounted to little more than a sideshow in a much broader spasm of vandalism and violence that was itself utterly futile. When former President Jimmy Carter claims the assault on the Capitol "almost succeeded in preventing the democratic transfer of power," he is giving blowhards like Rhodes way too much credit.