By Asha Rangappa

Dear Reader,

Last Thursday, the Justice Department unveiled a seventeen-count indictment against eleven members of the Oath Keepers militia group, including its founder and leader, Stewart Rhodes. The indictment is notable for its detailed description of the organization’s military-style planning, recruitment, and training in the weeks before and after the January 6 insurrection at the Capitol, and also because it alleges the most serious charge to date: seditious conspiracy. It is also notable for what it does not allege, and whom it does not name, at least so far. Here are the three big-picture takeaways on what to make of this development and its impact and significance in the overall investigation into January 6.

First, the Justice Department is viewing the violent attempt to prevent the lawful transfer of power as a political crime. Seditious conspiracy is rare not only because it’s difficult to prove, but because it is highly symbolic: It’s the closest crime we have to treason. It brands anyone convicted of it as a traitor to the country and this stigma makes it important, from a legal perspective, to reserve the charge for only the most heinous acts against the government. In fact, the Justice Department could have theoretically charged the central players in the Oath Keepers with treason – their actions would meet the legal definition of “levying war against the United States,” one element of treason required by the Constitution. But as Professor Carlton Larson, an expert on the law of treason at UC Davis School of Law, has noted, the precedent and case law on treason is ambiguous, and may have required the government to prove that the defendants intended to overthrow the government, rather than merely thwart the operation of a single law. While the indictment does include language from Rhodes advocating for a “bloody, massively bloody revolution” in the event that Biden became president and his view that “there [was] no standard political or legal way out of this,” the Oath Keepers’ actions were largely focused on derailing, through intimidation and violence, the execution of the Electoral Count Act on January 6. In short, a treason charge would be harder for the government to prosecute and easier for the Oath Keepers to defend. By contrast, seditious conspiracy is broader, and covers the use of force to “prevent, hinder, or delay the execution of any law.” It is, therefore, not only a perfect fit for the facts alleged in the indictment, but still characterizes the Oath Keepers’ actions as an act of treachery against the United States and democracy itself.