The latest development in the Justice Department’s criminal investigation of the attack on the U.S. Capitol last year was a particularly inconvenient one for many conservative politicians and pundits.
On Thursday, only a day after Marco Rubio took to the Senate floor to mock the idea that “our government last year was almost overthrown by a guy wearing a Viking hat and speedos,” the department released an indictment charging the founder and leader of the Oath Keepers militia and 10 other people with seditious conspiracy. The indictment alleged an armed “plot to oppose by force the 2020 lawful transfer of presidential power” and “take control of the Capitol” on Jan. 6 to prevent the certification of the electoral college vote in favor of Joe Biden.
For months, conservative politicians and pundits had been pointing to the fact that no one had been “charged” with insurrection or seditious conspiracy as proof that the media and liberals had blown the events of that day out of proportion. Among other things, the latest Oath Keepers indictment amounts to an official repudiation of that specious talking point, but beyond that, what might it tell us about the possibility that former President Donald Trump himself might get ensnared?
The usual caveats apply: Beyond what has been disclosed in court filings, the mechanics and investigative work product of the department’s investigation are largely secret, and predictions are always a risky undertaking. One could reasonably see the conspiracy charge as part of a potential trail that could lead to Trump’s eventual prosecution. But there are good reasons to be dubious that the department is actually getting closer to charging Trump for his role in the events of Jan. 6 or his conduct leading up to that day.
One thing that is clear is that the indictment represents the sort of incremental but meaningful progress that Attorney General Merrick Garland promised in his speech about Jan. 6 earlier this month. Nine of the 10 people charged alongside Oath Keepers founder Stewart Rhodes were already under indictment, but they along with Rhodes now face the seditious conspiracy charge in addition to previously pending charges. The broad contours of the charged conspiracy had been outlined in earlier charging documents, but the newest indictment provides a more comprehensive and detailed account that includes many communications involving Rhodes himself — a particularly useful compendium for those of us who are not able to follow all of the daily ins and outs of the proceedings, which now involve more than 700 defendants.
The seditious conspiracy charge has rightly drawn a great deal of attention in light of the public discourse in recent months. According to reporting last summer, Garland himself was reluctant to charge anyone with sedition — based on some sound political, legal and practical concerns — so the government had been using legally comparable charges related to obstructing an official proceeding, and it may continue to do so in all but the most serious cases.
In addition to the fact that the department has gathered new evidence since then, the question of whether to charge anyone with sedition had taken on greater political significance in recent months. On the left, some observers had criticized the department for not invoking a charge like sedition or incitement of insurrection, which they believed better approximated the political and legal significance of Jan. 6. Perhaps more significantly, however, many people on the right had been harping on the absence of those charges and, like Rubio, had been downplaying the investigation and seriousness of the day’s events. That public campaign may have prodded the department to do something to reassert the significance of its work and to place the day’s events in appropriate context.
Does the latest Oath Keepers indictment provide further reason to believe that Trump might be charged for a seditious conspiracy or a conspiracy to obstruct the certification? After all, the Oath Keepers provided security to Republican operative and longtime Trump adviser Roger Stone on Jan. 6, and prosecutors could eventually uncover evidence that Stone was communicating with Trumpworld, the White House or Trump himself about the violent plan that the government has alleged.
If Trump was aware of, facilitated or encouraged the alleged conspiracy, he could be deemed to have joined in it, which would make him criminally culpable for the conspiracy itself and any other reasonably foreseeable criminal acts conducted in furtherance of the conspiracy — including, say, the obstruction of the certification itself, destruction of government property or assaulting federal officers, which have also been alleged. If that happened through Stone — whether Stone communicated to Trump through an intermediary in Trumpworld or the White House, or communicated directly with Trump himself — that could be sufficient. What counts as “joining” a conspiracy is typically fact- and context-specific and is ultimately up to a jury to decide. But the agreement among co-conspirators does not need to be explicit, and you do not have to know everyone involved nor all the details of the plan to be criminally liable.
As a result, the fact that the government has now moved even further up the hierarchy of the Oath Keepers would seem to provide fodder for the theory that the Justice Department is simply proceeding as it always does in large, complex criminal investigations — from the bottom to the top — and that the criticisms of Garland and the department for not investigating Trump more aggressively are misplaced. It is a theory that has been articulated by some increasingly exasperated Garland defenders, who also posit that the department could eventually get to Trump through someone like Alex Jones — whose right-hand man, Owen Shroyer, has already been charged, who helped organize the preceding rally that day and who has said that White House officials told him to lead people to the Capitol.
These claims about how investigations typically proceed are not frivolous, but they are not as self-evident as their proponents claim. For one thing, the government does not always work this way, as I can attest in a limited way based on my experience prosecuting an international financial fraud that defrauded victims of roughly $150 million. The first prosecution that began in that case was of the CEO of the corporate-criminal enterprise — in part because of how events happened to unfold in that investigation, but also because I did not want to embark on a needless, years-long slog of prosecuting people incrementally higher up when I saw an opening and a path to charge the CEO early on. Other prosecutors can tell similar stories.
As with Jan. 6, large criminal undertakings and events do not always involve clear lines of authority or organizational charts depicting everyone involved in the way that you might see if you were investigating misconduct at a large financial institution. They also may involve multiple, perhaps overlapping conspiracies of varying levels of complexity and potency, rather than some hypothetical pyramidal structure in which everyone has a singular objective. What determined prosecutors typically look for are points of leverage and opportunity — ideally involving the most significant players possible and as early in the investigation as possible.
None of us ultimately knows what Garland and his team of prosecutors ultimately have in mind or hope to achieve. I tend to believe that if they were seriously looking into Trump’s criminal exposure for his post-election conduct, we would see some meaningful indication of them pursuing more direct lines of inquiry — like federally investigating Trump’s infamous call with Georgia Secretary of State Brad Raffensperger (which seems to have been left to local prosecutors in Georgia), or investigating what went on within the White House on Jan. 6 (which seems to have been left to the special committee in the House, at least for now).
Prosecutors use unsavory people as cooperators all the time, but if you had the potential to use someone like Mark Meadows as a cooperator against Trump — which they do — that would be far more preferable than hoping to flip your way to Trump through the Oath Keepers and people like Stone or Jones, who have well-documented histories of lying.
Time is also not on the Justice Department’s side, which is another reason to be skeptical of the notion that prosecutors are aggressively pursuing Trump through the Jan. 6 prosecutions — much less that they will ever charge him. If Republicans take back one or both houses of Congress, they are likely to make the department’s investigation as difficult as possible through oversight hearings and media appearances. And if Trump announces a bid for reelection in 2024, it is hard to envision that the department under Garland would ever seriously consider charging him, since it will look like an effort to steer the election to Biden.
None of this is to write off the significance of the latest indictment, but if you are interested in what this means for Trump, then, as with all things having to do with the man, a healthy dose of caution and skepticism remains in order.