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Donald Trump ought to face the same charges the Oath Keepers did

Bringing down the leaders of the Oath Keepers should not be the government's end goal.
Donald Trump after speaking at a "Great American Comeback" rally at Bemidji Regional Airport in Bemidji, Minn. on Sept. 18, 2020.
Donald Trump after speaking at a "Great American Comeback" rally at Bemidji Regional Airport in Bemidji, Minn., on Sept. 18. Brendan Smialowski / AFP via Getty Images, file

Tuesday’s convictions of five Oath Keepers — including founder Elmer Stewart Rhodes and top deputy Kelly Meggs who were found guilty of the gravely serious charge of seditious conspiracy — may seem like game-winning goals, but they’re just critical points the Justice Department put on the board right before halftime. The government’s successful prosecution sidelines some strong players, but the captains and coaches we have reason to suspect called the shots on Jan. 6, 2021 (former President Donald Trump and his minions) remain on the field.

After eight weeks of testimony, it took the jury only three days to return its verdicts.

To win the game, special counsel Jack Smith, who’s been appointed to investigate Trump’s role in the violence of Jan. 6, needs to use the same playbook that worked against the Oath Keepers. That is, he should be looking to see if seditious conspiracy and obstruction of Congress charges are warranted for Trump and those in his inner circle.

After eight weeks of testimony, it took the jury only three days to return its verdicts. The swiftness of the jury’s deliberations and the potential similarities between what those defendants did and what we know about Trump and his high-profile cohorts, should encourage the independent counsel to at least consider, if not pursue, such a case. Smith, and his boss, Attorney General Merrick Garland, may ultimately decide that there are more palatable alternatives to charging Trump and his advisers with crimes punishable with decades in prison, but I believe Smith has valid predication to explore using the same charges applied to the Oath Keepers.

The jury accepted the government’s argument that a defendant need not have entered the Capitol on Jan. 6 to be guilty of obstructing Congress or guilty of seditious conspiracy. The jury also accepted the government’s argument that the defendants’ failure to stop the confirmation of the Electoral College vote tally made them no less guilty. Rhodes, who was in Washington that day, never entered the Capitol. He denied ordering others to breach the Capitol and claimed they were “stupid” to have done so, but the jury didn’t buy his attempt to distance himself from that day’s violence.

The jury accepting those arguments ought to worry Trump, adviser Roger Stone, former White House chief of staff Mark Meadows, former national security adviser Michael Flynn and others in that orbit.

An FBI agent testified that just minutes after Joe Biden was declared the winner of the 2020 election, Rhodes communicated with Stone via a “Friends of Stone” encrypted chat group established to coordinate Trump’s post-loss tactics. “What’s the plan? We need to roll ASAP,” prosecutors say Rhodes asked Stone. Rhodes attached a proposal to occupy the streets of Washington and to enter the Capitol. The night before the attack on Congress, Stone was onstage in Freedom Plaza telling thousands of Trump supporters, “I will be with you tomorrow, shoulder to shoulder.”

At events just prior to the riot, Stone used Oath Keepers as his personal security guards. The day before the 2020 election, Roger Stone had been recorded by a documentary crew stating, “F--- the voting, let’s get right to the violence.” The attempted use of force is a key element of the seditious conspiracy statute. And force isn’t even required for an obstruction of Congress charge.

Neither Meadows nor Flynn is known to have staged caches of weapons around the D.C. Beltway as the Oath Keepers did, but the Jan. 6 House committee has focused on what it has called the “marshaling of the mob.” As NBC reported, in the days after the election, “Flynn became a leading figure in the campaign to sow doubt about the results and urge Trump to take extraordinary measures to stay in power … and floated the idea of martial law.”

Cassidy Hutchinson, an aide to Meadows, told the Jan. 6 committee that Meadows had warned her in advance that Jan. 6 could get “real, real bad” and that Trump attorney Rudy Giuliani, as he left a Jan. 2 meeting with Meadows, asked “if I was excited for the 6th. ... Talk to the chief (Meadows) about it. He knows about it.”

It’s important that Smith find out the details of the plan that had Giuliani so excited and see if any of it overlapped with the plan carried out by Rhodes and those following him.

We know Trump spread disinformation about a “stolen” election and tried pressuring Vice President Mike Pence out of certifying election results.

On Jan. 6, Trump — the Justice Department could argue — incited a crowd that he knew to be armed to go with him to the Capitol. He told those in attendance “if you don’t fight like hell you’re not going to have a country anymore.” We don’t know if the committee or the Justice Department has seen more evidence that could support a charge of sedition against the former president, but we know that Trump spread disinformation about a “stolen” and “rigged” election and that he tried pressuring Vice President Mike Pence, the president of the Senate, out of certifying election results. That sounds like the framework for charges of either obstructing Congress or obstructing an official act to me.

There are always investigative gaps in a case of this complexity and magnitude. Often, such gaps are filled when someone with first-hand knowledge cooperates. That’s another reason why the Oath Keepers’ convictions may prove valuable in the special counsel’s investigation into Trump and his White House. The Oath Keepers who are staring at decades in prison might decide that cooperating with prosecutors investigating Trump is in their best interest and their next best move.

Smith and Garland are pondering their next moves, too. They shouldn’t be satisfied with being up on the scoreboard or sidelining Rhodes. They need to determine if they can get the same person Rhodes was trying to help off the field, too.