A federal judge in Washington, D.C., last week sentenced Oath Keepers leader Stewart Rhodes to 18 years in prison for seditious conspiracy, obstruction of an official proceeding, and tampering with records. The New York Times says Rhodes was sentenced for "the role he played in helping to mobilize the pro-Trump attack on the Capitol on Jan. 6, 2021." It adds that the sentence is "the most severe penalty so far in the more than 1,000 criminal cases stemming from the Capitol attack."
Contrary to that gloss, Rhodes' role in the breach of the Capitol, which forced a delay in the congressional ratification of President Joe Biden's election, remains unclear. Rhodes was at the Capitol grounds that day, and during his trial a federal prosecutor described him as "a general surveying his troops on the battlefield." But unlike other members of his group, he did not enter the Capitol or participate in the violence or vandalism. Notably, the jury found him not guilty of conspiring to obstruct an official proceeding, a puzzling verdict if he did in fact direct his followers to assault the Capitol.
The Justice Department's sentencing memo, which recommended a 25-year sentence for Rhodes, said he and other Oath Keepers "led a conspiracy that culminated in a mob's attack on the United States Capitol while our elected representatives met in a Joint Session of Congress." It also said Rhodes "led a conspiracy to oppose by force the lawful transfer of power following the 2020 U.S. Presidential Election," a vaguer description that better fits the facts that the jury accepted.
Prosecutors urged U.S. District Judge Amit P. Mehta to take into account acquitted conduct in punishing Rhodes, as federal sentencing rules allow, and hold him responsible for the actions of his co-conspirators. They also recommended a sentencing enhancement based on "terrorism," defined as conduct "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct." Although Rhodes "did not engage in violence," the Justice Department said, his rhetoric inspired others to do so.
Based on evidence cited in the sentencing memo, it is clear that Rhodes saw violence as a legitimate response to what he perceived as a stolen election. "We're very much in exactly the same spot that the founding fathers were in like March 1775," he said during a conference call after the election. "Patrick Henry was right. Nothing left but to fight. And that's true for us, too. We're not getting out of this without a fight."
Rhodes was more explicit a December 14 open letter to Donald Trump that was posted on the Oath Keepers website. "If you fail to act while you are still in office," he wrote, "we the people will have to fight a bloody civil war and revolution."
Rhodes reiterated that sentiment in chat group messages that day. "Trump has one last chance to act," he said. "He must use the insurrection act. Unless we fight a bloody civil war/revolution."
In Rhodes' fantasy, the Oath Keepers would rise up after Trump invoked the Insurrection Act, which authorizes the president to call upon "the militia" to suppress "any insurrection, domestic violence, unlawful combination, or conspiracy" that "opposes or obstructs the execution of the laws of the United States or impedes the course of justice under those laws." If Trump "doesn't use the Insurrection Act to keep a ChiCom [Chinese Communist] puppet out of the White House," Rhodes warned, "we will have to fight a bloody revolution/civil war to defeat the traitors."
In a December 19 exchange with a member of the Proud Boys, Oath Keeper Roberto Minuta described Rhodes as "pretty disheartened." Based on a conversation with Rhodes the previous night, Minuta added that "he feels like it's go time" and that "the time for peaceful protest is over in his eyes."
In a series of messages to an Oath Keepers chat group on December 25, Rhodes complained that Trump's advisers were "acting as if his only option is to hope Congress does the right thing." He said that was "extremely unlikely," adding, "I think Congress will screw him 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."
Such rhetoric was not enough to persuade jurors that Rhodes specifically planned the attack on the Capitol. In arguing that Mehta nevertheless should assume that Rhodes did have such a plan, the Justice Department noted that he had described January 6 as a "hard constitutional deadline," which it said confirmed "the group's knowledge of Congress's process for certifying the election results" and "improper purpose in later breaching the Capitol building."
The sentencing memo also cited a 90-second phone call between Rhodes and Meggs before the latter led a group of Oath Keepers who pushed their way into the Capitol. Although the content of that conversation is unknown, the Justice Department said, witnesses "testified that Meggs appeared to be receiving direction from whomever he was talking to on the phone." Again, the jury did not view that inference, even when combined with Rhodes' violent rhetoric, as sufficient to find him guilty of conspiring to attack the Capitol.
What about the "quick reaction force" (QRF) that stockpiled weapons at a Comfort Inn in Arlington, Virginia, prior to the riot? The sentencing memo noted that Rhodes "claimed he was unaware that there was a QRF for January 6," saying he knew that Oath Keeper Edward Vallejo had stashed guns at the hotel but "did not know that there was anybody sitting on them to do anything with them." In a message introduced at trial, however, Rhodes agreed with Meggs that a QRF was appropriate. "Okay," he said. "We will have a QRF. The situation calls for it."
The QRF ultimately did not do anything. But what did Rhodes think its purpose was? Oath Keeper Michael Greene, who in March was found guilty of a misdemeanor in connection with the Capitol riot, testified that Rhodes "wanted an armed QRF in Virginia because he heard people talking about they were going to forcefully storm the White House and remove Trump because Trump was refusing to leave the White House." According to the sentencing memo, Rhodes "instructed his co-conspirators to be prepared, if necessary, to secure the White House and use force against any government actors attempting to remove President Trump as a result of the presidential election."
Rhodes manifestly was ready to violently oppose the peaceful transfer of power, and he took steps in that direction, including the QRF and weapon purchases after the Capitol riot. That conduct, the jury evidently concluded, fit comfortably within the legal definition of seditious conspiracy, which includes plots to forcefully oppose the authority of the U.S. government or hinder the execution of its laws. But that conspiracy did not necessarily entail a plan to violently disrupt the electoral vote count on January 6. On that charge, the jury deemed the evidence insufficient to convict Rhodes.
The jury "made the confusing decision to acquit Mr. Rhodes of planning in advance to disrupt the certification of the election yet convict him of actually disrupting the certification process," the Times reported after the verdicts. "That suggested that the jurors may have believed that the violence at the Capitol on Jan. 6 erupted more or less spontaneously, as Mr. Rhodes has claimed."
Whatever you make of Rhodes' intent, it seems clear that the violence, by and large, did erupt "more or less spontaneously." According to the Justice Department, the Oath Keepers conspiracy involved 20 or so people. A handful of Proud Boys also were convicted of seditious conspiracy.
These relatively organized rioters represented a tiny fraction of the angry Trump supporters who trespassed on the Capitol grounds or entered the building itself. The 1,000 or so who have been arrested so far typically have been charged with misdemeanors such as "entering or remaining in a restricted building or grounds," "disorderly and disruptive conduct in a restricted building or grounds," "disorderly conduct in a Capitol building," and "parading, demonstrating, or picketing in a Capitol building." Roughly a third have been charged with violent crimes, and only a few have been accused of acting based on plans hatched prior to January 6.
When the Justice Department says Rhodes "led a conspiracy that culminated in a mob's attack on the United States Capitol," it is not only making an allegation that jurors rejected. It is implying that, but for that conspiracy, there would have been no Capitol riot. Given the emotional energy unleashed by Trump's pre-riot speech, that counterfactual supposition seems highly implausible. But it fits the narrative favored by Democrats who reflexively portray the riot as an "insurrection," which implies a level of planning and organization that does not reflect the chaotic reality of what happened that day.