The usual caveats apply: beyond what has been revealed in court filings, the mechanics and investigative work-outcome of the department’s investigations are largely classified, and making predictions is always a risky proposition. One could reasonably view the conspiracy charges as part of a possible lead that could lead to Trump’s eventual prosecution. But there is good reason to doubt that the department is actually blaming Trump for his role in the events of January 6 or his conduct up to that date.
One thing that is clear is that the indictments represent the kind of incremental but significant advance Attorney General Merrick Garland promised in his Jan. 6 speech earlier this month. Nine of the 10 people were charged alongside Oath Keepers founder Stewart Rhodes were already charged, but they now face seditious conspiracy charges along with Rhodes in addition to previously pending charges. The broad outlines of the accused conspiracy had been outlined in previous indictment documents, but the latest indictment offers a fuller and more detailed account, containing many communications pertaining to Rhodes himself – a particularly useful compendium for those of us unable to to follow everyone the daily back and forth of the proceedings, in which more than 700 defendants are now involved.
The allegation of seditious conspiracy has rightly attracted a great deal of attention given the public discourse of recent months. According to Report from last summer, Garland himself was reluctant to charge anyone with sedition – due to some reasonable political, legal and practical concerns – so the government had and will continue to bring legally comparable charges relating to obstruction of an official process in all but most cases severe cases.
Aside from the fact that the department has since gathered new evidence, the question of whether to charge someone with sedition has gained political prominence in recent months. On the left, some observers had criticized the department for failing to bring charges such as incitement to hatred or incitement, which they felt better reflected the political and legal significance of January 6th. Perhaps more significantly, however, many people on the right had criticized the lack of these charges and, like Rubio, downplayed the investigation and the seriousness of the day’s events. This public campaign may have prompted the department to take action to underscore the importance of its work and to place the day’s events in appropriate context.
Does the recent Oath Keepers indictment provide further reason to believe Trump could face charges of seditious conspiracy or conspiracy to obstruct certification? After all, the Oath Keepers provided security for Republican agent and longtime Trump adviser Roger Stone on Jan. 6, and prosecutors may eventually uncover evidence Stone was communicating with Trumpworld, the White House, or Trump himself about the government’s alleged plan of violence.
If Trump was aware of, facilitated, or promoted the alleged conspiracy, it could be assumed that he had joined it, which would make him criminally responsible for the conspiracy itself any others reasonably foreseeable criminal acts carried out in furtherance of the conspiracy – including, for example, obstructing the certification itself, destroying government property, or attacking federal officials who were also accused. If this was done through Stone — whether Stone was communicating with Trump through an intermediary in Trumpworld or the White House, or directly with Trump himself — that might suffice. What counts as “joining” a conspiracy is typically fact and context specific, and must ultimately be decided by a jury. But the agreement between the co-conspirators doesn’t have to be explicit, and you don’t have to know everyone involved or all the details of the plan to be criminally liable.
Thus, the fact that the government has moved even further up the Oath Keepers hierarchy seems to fuel the theory that the Justice Department simply proceeds as it always does – bottom-up – in large, complex criminal investigations, and that criticism of Garland and the department not to investigate Trump more aggressively is misplaced. It is a theory that has been articulated increasing by some upset garland defenderwho also posit that the department might eventually come to Trump by someone like Alex Jones – whose right hand Owen Shroyer has already been chargedwho helped organize the previous rally that day and who has said that White House officials told him to lead people to the Capitol.
These claims about the typical course of investigations are not lighthearted, but they are not as self-evident as their proponents claim. For one thing, government doesn’t always work that way, as I can attest from limited my experience Prosecuting an international financial scam that defrauded victims about $150 million. The first prosecution that began in this case was against the CEO of the corporate crime company – partly because of the haphazard nature of the investigation, but also because I didn’t want to engage in an unnecessary, year-long drudgery of progressively prosecuting people higher up, when I saw an opportunity and a way to impeach the CEO early. Other prosecutors can say similar stories.
As with January 6th, major criminal ventures and events do not always include clear lines of authority or organizational charts that represent all those involved as you might see it if you were investigating wrongdoing at a large financial institution. They may also involve multiple, perhaps overlapping, conspiracies of varying complexity and strength, rather than a hypothetical pyramid structure in which each has a single goal. What determined prosecutors usually look for are leverage and opportunity – ideally involving key stakeholders and as early in the investigation as possible.
Ultimately, none of us knows what Garland and his team of prosecutors ultimately have in mind or hope to achieve. I’m inclined to think that if they seriously investigated Trump’s criminal exposure for his post-election behavior, we would see some strong evidence that they were pursuing more direct investigative lines — how determined nationwide Trumps infamous call with Georgia Secretary of State Brad Raffensperger (which apparently is are left to local Georgia prosecutors) or to investigate what was going on at the White House on Jan. 6 (which appears to have been left to the special committee in the House, at least for now).
Prosecutors use unsavory people as collaborators all the time, but if you had the potential to use someone like Mark Meadows as a collaborator against Trump – which they do – that would be a lot better than hoping to work your way through the Oath Keepers to Trump and folks like Stone or Jones who have a well-documented history of lying.
Time is not on the Justice Department’s side either, which is another reason to be skeptical of the idea of prosecutors aggressively pursuing Trump through the Jan. 6 indictments — let alone ever indicting him. If Republicans win 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 2024 re-election bid, it’s hard to imagine Garland’s department would ever seriously consider impeaching him, as it will look like an attempt to steer the election towards Biden.
None of this is intended to detract from the importance of the latest indictment, but if you’re interested in what this means for Trump, then, as with anything involving the man, a healthy dose of caution and skepticism is in order.