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The empty chair at the Jan. 6 seditious conspiracy trials

by Glenn C. Altschuler, Opinion Contributor - 05/14/23 9:00 AM ET

FILE – This artist sketch depicts the trial of Oath Keepers leader Stewart Rhodes and four others charged with seditious conspiracy in the Jan. 6, 2021, Capitol attack, in Washington, Oct. 6, 2022. Shown above are, witness John Zimmerman, who was part of the Oath Keepers’ North Carolina Chapter, seated in the witness stand, defendant Thomas Caldwell, of Berryville, Va., seated front row left, Oath Keepers leader Stewart Rhodes, seated second left with an eye patch, defendant Jessica Watkins, of Woodstock, Ohio, seated third from right, Kelly Meggs, of Dunnellon, Fla., seated second from right, and defendant Kenneth Harrelson, of Titusville, Fla., seated at right. Assistant U.S. Attorney Kathryn Rakoczy is shown in blue standing at right before U.S. District Judge Amit Mehta. Watkins told jurors Wednesday, Nov. 16 that it was a “really stupid” decision, saying she got swept up in what seemed to be a “very American moment.” (Dana Verkouteren via AP)

Last week, after deliberating for seven days, a jury convicted four members of the Proud Boys, including leader Enrique Tarrio, of seditious conspiracy for their role in the assault on the U.S. Capitol on Jan. 6, 2021. In two trials, ending in November 2022 and January 2023, seven members of the Oath Keepers, including founder Stewart Rhodes, were found guilty of the same crime.

Unfortunately, our 24/7 news cycle, which places a premium on “breaking news” and is often presented within highly partisan media silos, left out detailed documentation of the danger to American democracy posed by rightwing paramilitary groups — and the support these groups’ enjoy among Republican politicians and voters.

As defined in a statute enacted during the Civil War, seditious conspiracy is an attempt by two or more persons to “conspire to overthrow, put down, or 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.”

Seditious conspiracy can be difficult to prove. Prior to the Jan. 6 trials, the last conviction occurred in 1995, when Sheikh Omar Abdel Rahman was found guilty of seditious conspiracy in a plot to bomb New York City landmarks.

The voluminous evidence in the Proud Boys case included Tarrio’s post-Jan. 6 claim, “Make no mistake. We did this.” Before Jan. 6, prosecutors demonstrated, Oath Keepers stashed a large stockpile of firearms and other weapons in a hotel in Arlington, Va., to be used as needed.

“We should have brought rifles,” Rhodes declared after Jan. 6. “We should have fixed it right then and there… I’d hang [expletive] Pelosi from the lamppost.”

Most important, as Jill Huntley Taylor, CEO of a trial consulting firm, has written, Donald Trump occupied “the empty chair” at the defense table. Lawyers for the Proud Boys and Oath Keepers often rhetorically pointed to Trump, in effect acknowledging prosecutors’ claims that their clients were “thirsting for violence and organizing for action” as “Donald Trump’s army.”

Nayib Hassan, an attorney representing Tarrio, maintained that prosecutors were trying to make his client “a scapegoat for Donald Trump and those in power.” The former president’s words, motivation and anger, Hassan added, “caused what occurred on Jan. 6.”

Norm Pattis, a lawyer representing Joe Biggs, another Proud Boys defendant, claimed that he, too, had come to Washington D.C., because his “commander-in-chief told them a lie.”

The former president has continued to heap praise on the insurrectionists. “These were peaceful people,” he insists. Ashli Babbitt, who was shot and killed by a policeman as she attempted to break into the Capitol, was “an innocent, wonderful, incredible woman.” Because the Department of Justice and the FBI “are destroying the lives of so many Great American Patriots, before our very eyes.”

Trump has indicated that he would pardon individuals convicted of attempting to prevent Congress from certifying Joe Biden election victory and assaulting law enforcement officers: “I mean full pardons with apologies to many.” The crowd at one of Trump’s rallies this spring heard “Justice for All,” a song recorded by Jan. 6 inmates, along with the former president’s recital of the “Pledge of Allegiance.”

Last month, at a campaign reception in the Red Arrow Diner in Manchester, N.H.,

aides told Trump that Micki Larson-Olson, “a Jan. 6er,” had traveled hundreds of miles to meet him. A QAnon supporter, Larson-Olson climbed the scaffolding set up for Biden’s inauguration on Jan. 6, bragged that six officers struggled to remove her, was convicted of unlawful entry to the Capitol grounds and spent 160 days in prison.

She told reporters she “would like a front seat” for the execution of Mike Pence. Trump signed the backpack Larson-Olson said she was carrying on Jan. 6, embraced her, kissed her on the cheek, called her a “terrific woman” and urged her to “hang in there.”

“What had been done to Jan. 6 patriots,” Trump added, “was so bad.”

The Jan. 6 commission’s public hearings, the seditious conspiracy trials and convictions and Trump’s over-the-top comments may be having an impact on GOP voters. In a March poll, only 27 percent of them approved or somewhat approved of the Jan. 6 insurrection; increasingly, Republicans acknowledge that Trump and his allies have not presented credible evidence of fraud in the 2020 election.

That said, Trump remains the front-runner for the GOP 2024 presidential nomination. This even though Trump continues to lie about 2020 presidential election; provided the words, motivation and anger that convinced supporters to launch an assault on the U.S. Capitol; retained classified documents at Mar-a-Lago instead of complying with a subpoena to return them; pressured officials to “find” votes to change the outcome of the 2020 election in Georgia after a hand-count audit had been completed and the results certified by the state’s Republican governor and secretary of state; and was convicted of sexual battery and defamation.

If all this does not disqualify a person from serving as president of the United States, what does?

Glenn C. Altschuler is the Thomas and Dorothy Litwin Professor of American Studies at Cornell University. He is the co-author (with Stuart Blumin) of “Rude Republic: Americans and Their Politics in the Nineteenth Century.”