‘Open and shut’ cases against Oath Keepers? History and politics say no

The indictment of members of the Oath Keepers militia for seditious conspiracy has been widely celebrated as an essential step in establishing accountability for the violent disruption of democracy on Jan. 6, 2021. That enthusiasm should be tempered, however, by the challenges their trial will pose to prosecutors in securing convictions and, potentially, to the viability of the jury system in a polarized America.

The U.S. Code defines seditious conspiracy as an agreement among two or more people “to overthrow, put down, or to destroy by force the Government of the United States … 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, or by force to seize, take, or possess any property of the United States.”  

At first glance, the facts set forth in the indictment of Oath Keepers founder Stewart Rhodes and 10 participants in the storming of the Capitol seem a perfect exemplar of this crime. While it may be a stretch to suggest that the Oath Keepers intended to “overthrow, put down, or destroy by force the Government of the United States,” the detailed communications included in the indictment make clear their shared intention “by force to prevent, hinder, or delay the execution of any law of the United States” — namely, the Electoral Count Act, by which the results in the Electoral College are confirmed by Congress.

Two days after the election, according to the indictment, Rhodes shared with his leadership team an encrypted chat message anticipating violent resistance to Joe Biden’s election: “We aren’t getting through this without a civil war. Too late for that. Prepare your mind. Body. Spirit.” 

The tone of the rhetoric escalated as the Trump campaign’s challenges to the election results failed in state after state, venue after venue. On Dec. 11, Rhodes sent another encrypted message to the leadership team, stating that the contest over who won the election “will be a bloody and desperate fight. We are going to have a fight. This cannot be avoided.”  

In the days leading to Jan. 6, the indictment says, detailed planning took place, including organizing participants into two “stacks” to breach the Capitol and staging both weapons and additional personnel in area hotels as “Quick Reaction Forces” to reinforce the assault teams. A week before the attack, Rhodes urged President Trump to use his powers as commander in chief and order the military to block the Jan. 6 certification. He informed his Leadership Intel Chat:  “There is no standard political or legal way out of this.”  On January 6, according to the indictment, both “stacks” breached the Capitol, participated in the violence, and communicated with each other and with Rhodes throughout.   

If the proofs come in as alleged in the indictment, this should be an open and shut case. But both history and the current state of American politics suggest otherwise.

Although the seditious conspiracy statute has been used successfully to prosecute terrorists — the so-called “Blind Sheikh case” is the most prominent — and communists who actively plotted to destroy the American form of government, attempts to prosecute right-wing militia groups have not succeeded. In 1987, 14 members of an Arkansas-based group called The Covenant, the Sword, and the Arm of the Lord (“CSA”) were charged with plotting to overthrow the U.S. government; among other things, the group allegedly planned to poison the water supplies to New York City and Washington with sodium cyanide. After a two-month trial, they were acquitted. 

More recently, in 2010, nine members of a Michigan-based militia known as Hutaree were acquitted of plotting to foment a war against the federal government. In dismissing the charges, the judge stated that the defendants’ “planning” amounted to protected, if concerning, political speech. 

Although the Oath Keepers seem to have taken more active steps than the CSA or Hutaree to fulfill their plans, thus reducing the amount of First Amendment protection, the historic failure to convict militia groups should nonetheless give us pause. Unlike transnational terrorist or communist groups that sought to destroy our Constitution, militia groups frequently claim that they wish to restore America’s original purpose; the Oath Keepers, largely composed of retired law enforcement and military officers, renew their oath to “protect and defend” the Constitution “from all enemies, foreign and domestic.” 

If the Oath Keepers go to trial, they no doubt will argue that they sincerely believed the 2020 presidential election had been stolen, and that they sought to prevent a usurpation of the Constitution under color of law. Further, given President Trump’s rhetoric before and after the election — urging them and similar groups to “stand by” and to “fight like hell” — they may argue that they were acting under perceived orders from their commander in chief.

These arguments certainly would complicate the prosecutors’ task of securing a unanimous jury verdict of guilt beyond a reasonable doubt. But the current state of American politics may make it impossible. 

By every measure, an overwhelming percentage of Republican voters — hovering around 70 percent in most polls — believed, like the Oath Keepers, that the 2020 election was stolen. As many as 40 percent of Republicans in a recent survey also believe that political violence can be appropriate. 

Here’s the problem: By law, the Oath Keeper defendants are entitled to a jury panel drawn from a “fair cross-section of the community.” But what does that mean in this case? Is everyone who believes that the election was stolen to be excused for cause? If they are not, they may well be sympathetic to the Oath Keepers’ arguments. In such circumstances, will a unanimous jury be possible?

In a nation in which the monetization of First Amendment speech has polarized every aspect of life — not just who we vote for but how we vote, how we care for our health, what we watch and read, what car we drive, where we live, what and where we eat — it’s a matter of time before our divisions infect jury deliberations. 

What is a fair cross-section of the community, when “community” has ceased to exist? The trial of the Oath Keepers will test whether our polarization, so destructive of every other aspect of American life, will compromise as well our search for justice.           

John Farmer Jr. is director of the Eagleton Institute of Politics at Rutgers University. He is a former assistant U.S. attorney, counsel to the governor of New Jersey, New Jersey attorney general, senior counsel to the 9/11 Commission, dean of Rutgers Law School, and executive vice president and general counsel of Rutgers University.