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Prosecutors getting tough with seditious conspiracy indictment filed against Oath Keepers in Jan. 6 probe, legal experts say

A demonstrator wears an Oath Keepers badge on a protective vest during a protest outside the Supreme Court in Washington, D.C., on Jan. 5, 2021.Stefani Reynolds/Bloomberg

The seditious conspiracy indictment handed up against Oath Keepers founder Stewart Rhodes and 10 others stemming from the Jan. 6, 2021, attack on the US Capitol shows prosecutors are upping the ante in the sprawling probe, legal experts said Thursday.

“Good to see DOJ moving up the ladder, but going after the crime that can be established without proof of force or violence — the failed conspiracy to get officials like the VP to overturn the electoral vote count — needn’t start on the lower rungs,” tweeted Laurence Tribe, a Harvard Law professor.

Asha Rangappa, an attorney and former FBI agent who teaches at Yale’s Jackson Institute, tweeted that the seditious conspiracy charges were long overdue. Hundreds of people who participated in the Capitol attack have been hit with lesser counts.

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“Finally,” Rangappa wrote. “An indictment for seditious conspiracy, the closest crime we have to treason. Let the games begin.”

Palm Beach County, Fla. State Attorney Dave Aronberg said the new charges are significant.

“Seditious conspiracy is a big deal,” Aronberg tweeted. “The last time it was charged was in 2010. The seal has been broken.”

The last time U.S. prosecutors brought such a seditious conspiracy case was in 2010 in an alleged Michigan plot by members of the Hutaree militia to incite an uprising against the government.

But a judge ordered acquittals on the sedition conspiracy charges at a 2012 trial, saying prosecutors relied too much on hateful diatribes protected by the First Amendment and didn’t, as required, prove the accused ever had detailed plans for a rebellion.

Among the last successful convictions for seditious conspiracy stemmed from another, now largely forgotten storming of the Capitol in 1954, when four Puerto Rican nationalists opened fire on the House floor, wounding five representatives.

In Rhodes’s case, authorities allege he held a GoToMeeting call days after the election, telling his followers to go to Washington and let Trump know “that the people are behind him.” Rhodes told members they should be prepared to fight antifa and that some Oath Keepers should “stay on the outside” and be “prepared to go in armed” if necessary.

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Attorney Teri Kanefield, an author and commentator based in California, tweeted out the legal definition of seditious conspiracy, which requires the government to prove two or more people plotted to “overthrow, put down, or to destroy by force the Government of the United States (OR levy war).”

She noted that Rose has been under investigation for months, and she praised prosecutors for their methodical work.

“How long does it take? Rhodes has been under investigation since last spring,” Kanefield tweeted. “Why so long? Read the indictment. Goodness, the work to put together all those facts. ... I’ve said this before: Wanna make life easy on defense lawyers? Rush an indictment.”

Material from the Associated Press was used in this report.


Travis Andersen can be reached at travis.andersen@globe.com. Follow him on Twitter @TAGlobe.