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Donald Trump supporters storm the Capitol during the Jan. 6 2021 insurrection. (Tyler Merbler, https://flic.kr/p/2kq9gbH; CC BY 2.0, https://creativecommons.org/licenses/by/2.0/)
This week, a federal judge will begin handing down sentences for nine members of the Oath Keepers paramilitary group for their roles in the Jan. 6 insurrection, including six convicted of seditious conspiracy. The government seeks 25 years imprisonment for the group’s founder and leader that day, Elmer Stewart Rhodes III, and sentences ranging from 10 to 21 years for the other eight. Six of those sentences, if imposed, would become the longest to date for any Capitol Siege rioter.
The sentences, which will be imposed by U.S. District Judge Amit Mehta of Washington, D.C., raise difficult questions with no close precedents. Although at least 15 people have been sentenced for seditious conspiracy since the U.S. Sentencing Guidelines took effect in 1987, all previous cases involved people prosecuted for conduct “tantamount to waging war against the United States,” a term of art in the sentencing guidelines that the government concedes is not met here. Indeed, all other recent seditious conspiracy cases appear to have been brought at least in part under a different clause of the seditious conspiracy statute, 18 U.S.C. §2384—the clause that punishes conspiracies to “levy war” against the U.S. The Oath Keepers cases were brought under two different clauses that forbid conspiracies “to oppose by force the authority” of the U.S. and conspiracies “by force to prevent, hinder, or delay the execution of any law of the United States.”
As we’ll see, these distinctions are important, both as a technical matter—in terms of determining the “baseline offense level” under the U.S. Sentencing Guidelines—but also in terms of what seems “just” at a gut level.
More than 1,000 people have now been charged with federal crimes stemming from the Capitol insurrection. Of them, about 665 have been convicted, and roughly 485 sentenced. The most onerous sentences so far have been those meted out to former New York police officer Thomas Webster and welder Peter Schwartz—10 years and just over 14 years (170 months), respectively. Each was convicted of assaulting police officers with a deadly or dangerous weapon, and Schwartz, who was convicted of four such assaults, was also found guilty of corruptly obstructing an official proceeding. Furthermore, Schwartz’s heavy sentence reflects that he had 38 prior convictions, many for assaultive behavior, and was actually on probation for one of those crimes on Jan. 6.
None of the nine Oath Keepers being sentenced has any prior criminal convictions deemed relevant by the Guidelines. None were charged with assaulting officers—with or without a weapon. Two of these defendants—Jessica Watkins and Roberto Minuta—were charged with “impeding” officers during a civil disorder, a charge that carries a maximum five-year term as compared to the maximum 20-year term for assaulting officers with a dangerous weapon. Still, the impeding charges were serious, involving physical altercations with, and pushing against, officers inside the Capitol in ways that, in the context of the mob’s actions that day, likely caused injury and led officers to fear for their lives.
In its joint sentencing memorandum for the nine Oath Keepers—five convicted in a trial that ended in November and four in a second trial that concluded in January—the government argues that what these Oath Keepers defendants did is simply not comparable to the crimes of lone actors like Webster or Schwartz:
[T]he crimes [the Oath Keeper] defendants committed are unlike any others that this Court or other judges have addressed with respect to the attack on the Capitol on January 6. Rather, these crimes align much more closely with the acts of terrorism for which other courts have imposed lengthy sentences in other seditious conspiracy cases…
These defendants stand out among January 6 defendants because they not only joined in this horrific attack on our democracy as it unfolded, but they all took steps, in advance of January 6, to call for and prepare for such an attack. From participating in chats and meetings in which they advocated for the use of force to stop the certification of the election, to transporting weapons across the country to stage around our nation’s capital in support of this objective, these defendants intentionally helped to set the stage for January 6.
In fact, the government argues, these defendants should not even be categorized as “Jan. 6 defendants,” as it contends in its reply brief to the defendants’ sentencing memoranda:
This is not a “January 6 case.” The defendants ought to serve lengthy terms of incarceration because of their participation in a months-long conspiracy that aimed to oppose by force the authority of the United States. As the Supreme Court recognized, “collective criminal agreement—partnership in crime—presents a greater potential threat to the public than individual delicts. . . . Group association for criminal purposes often, if not normally, makes possible the attainment of ends more complex than those which one criminal could accomplish.” ... Here, the size and prominence of the group, and the magnitude of the group’s aims, made the group’s agreement particularly malicious and deserving of punishment more severe than other individuals who acted alone on January 6.
Consistent with this view, prosecutors are seeking terrorism enhancements under the sentencing guidelines for each of these defendants. The most severe enhancement sought is for Rhodes. Without the enhancement, the guidelines counsel a sentence for Rhodes of 135 to 165 months (11.25 to 14 years). With the enhancement, his guidelines vault to 262 to 327 months (21.83 to 27.25 years). Though seditious conspiracy carries a 20-year maximum penalty, all of the Oath Keeper defendants were convicted of multiple felonies, so the government seeks consecutive sentences in the cases of Rhodes and defendant Kelly Meggs to achieve its recommended 25- and 21-year overall terms for them.
Prosecutors have sought a terrorism enhancement in four previous cases stemming from Jan. 6, but judges have rebuffed the invitation each time, not seeing a sufficient basis for singling out those defendants for such grave treatment.
None of those earlier cases involved conspiracy, however—let alone seditious conspiracy. Here, Rhodes is accused of leading 26 other charged individuals to participate in the Capitol Siege, of whom 22 (including Rhodes) have already been convicted, either by trial (15 individuals) or guilty plea (seven). No previous Jan. 6 defendant presented such a strong case for terrorism enhancement as Rhodes. Not remotely.
That said, the government’s sentencing requests are aggressive and, extrapolating from judges’ previous sentencing practices, unlikely to be accepted in full. A Washington Post review in January found that, in Jan. 6 cases, judges have gone below prosecutors’ recommendations about 75 percent of the time and below guidelines recommendations in nearly 40 percent of cases.
In some instances, in my view, the recommendations in the Oath Keepers cases seem excessive. Three of the nine defendants being sentenced were acquitted of seditious conspiracy. One of those defendants was actually acquitted of all three conspiracy counts charged. Yet, for sentencing purposes, the government treats those three the same as if they’d been convicted of all counts.
It is true that under controlling D.C. Circuit precedent, a sentencing judge can take into account conduct for which a defendant has been acquitted if the judge believes the conduct was nevertheless proven by the lower preponderance-of-the-evidence standard—which is all that is required for sentencing purposes. Nevertheless, as I’ll discuss later, I will be surprised if Judge Mehta effectively overrides the jury verdict in this manner.
What did they do?
The Oath Keepers became a symbol of Jan. 6 when about 20 of them, dressed in combat fatigues, marched up the East Capitol steps in two waves, knifing through the crowd in so-called “stack formation”—hand on the shoulder of the cadre in front—and entering the building. I have provided fuller descriptions of the evidence in the case twice before, including here and here.
In a nutshell, for two months, Rhodes incited his followers to prepare for violent battle—both in public forums and in encrypted Signal chat messages—with apocalyptic and unambiguously seditious rhetoric. “We aren’t getting through this without a civil war,” he wrote in a Signal message on Nov. 5, 2020, just two days after the election. On December 14, in an open letter to then-President Trump, he presented a stark ultimatum, beseeching Trump to invoke martial law to prevent the transfer of presidential power to President-Elect Biden or force the Oath Keepers to take bloodier action on their own:
CONCLUSION: WE ARE IN FOR A FIGHT NO MATTER WHAT. ... You must stand tall and use your constitutional powers to fight this war against enemies foreign and domestic while you are still President and Commander-in-Chief. If you fail to do so, we the people will have to fight a bloody revolution/civil war to throw off an illegitimate deep-state/Chinese puppet regime.
As Jan. 6 approached, Rhodes had his troops bring their AR-15s, other firearms, and many thousands of rounds of ammunition to the outskirts of Washington, D.C. to stock arsenals for “quick reaction forces,” or QRFs. Most of these arms were stored in three rooms of a Comfort Inn in Ballston, Virginia, about a 20-minute drive from the Capitol. There was another cache in the garage of Rhodes’ hotel, the Hilton Garden Inn in Vienna, Virginia, while defendant Jessica Watkins—apparently not receiving word of where the QRFs were—left her and her Ohio-based recruits’ weapons further out, in Winchester, Virginia.
At trial, the defense lawyers never proposed a completely benign purpose for the QRFs. Some attorneys argued that the purpose of the QRFs was to rescue Oath Keepers in D.C. if they became besieged by Antifa—though that would have meant bringing arms into D.C. in defiance of D.C.’s gun laws. Others, like Rhodes, argued that the QRFs were in case then-President Trump took Rhodes’ advice and purported to invoke the Insurrection Act to “call up” the Oath Keepers as a “militia” to prevent the election from being “stolen”—a legally dubious scenario at best. In any case, the government argued—and the jury appears to have found—that the QRFs were set up in case Rhodes gave the order to use firearms to keep Trump in power. Rhodes had, in fact, often threatened to do just that—for example, in these encrypted chat messages to other Oath Keepers a week before Jan. 6:
I think that part of him [Trump] now understands that the Insurrection Act and warfare — with him as Commander in Chief — is the only way that he can save our Republic… But he needs to know that if he doesn’t do it, we will. And if we have to do it ourselves, without him as Commander in Chief, it will be exponentially harder, and many more of us will die. And while we fight, our nation will be vulnerable to invasion. It will be horrific.
So the defendants stand convicted of serious crimes. Still, the QRFs were never, in fact, used for any purpose, and stockpiling arsenals in Virginia hotels is apparently lawful in itself.
Nor was the Oath Keepers role on Jan. 6 particularly momentous, beyond its shocking symbolism. Though the government proved that the Oath Keepers’ overall goal that day was to prevent the transfer of power, they conceded that they could not prove that the Oath Keepers had any plan to effectuate that goal. So there was an element of spontaneity about how events unfolded that day. (See “Seditious Kvetching.”) If others had not breached multiple security barricades, barriers, windows, and doors long before the Oath Keepers arrived on the scene, these defendants might never have done anything illegal that day—or, at least, that was my impression after watching the first trial. (I watched the trial involving Rhodes, Meggs, Caldwell, Watkins, and Kenneth Harrelson. I did not see the second, involving Minuta, Hackett, Moerschel, and Vallejo.)
In its sentencing memorandum, after describing the horrors of the Jan. 6 attack on the Capitol, the government writes: “The defendants’ actions precipitated that violent riot and attack on the Capitol.” That sentence took me aback. One could certainly make that argument about the Proud Boys defendants who were recently convicted of seditious conspiracy, because it was alleged and proven in their trial that they played crucial roles in at least four of the early security breaches that enabled the mob to penetrate the Capitol. (See “The Proud Boys Seditious Conspiracy Conundrum.”) But there was no evidence that the Oath Keepers played a similar role.
What the government seems to mean is that Rhodes’ public speeches and open letters calling for bloody rebellion—which enjoyed First Amendment protection at the time they were delivered or published—helped persuade Trump supporters to join the insurrection, thereby precipitating Jan. 6. The government argues:
The defendants’ actions precipitated that violent riot and attack on the Capitol. These defendants, led primarily by Rhodes, Meggs, and Watkins, pushed the idea among Oath Keepers members and others that with a large enough mob, they could intimidate Congress and its Members and impose the conspirators’ will rather than the American people’s: to stop the certification of the next President of the United States.(Emphasis added.)
A judge has wide leeway at sentencing, and it’s possible he can use Rhodes’ ordinarily First Amendment-protected rhetoric against him in this way. But I suspect Judge Mehta will reject this argument for lack of proof. I think he will hold Rhodes responsible for what his own troops did—which is plenty—without trying to lay responsibility for the entire Jan. 6 riot at his feet. While Rhodes’s voice was a crucial one to his roughly three-dozen acolytes, the insurrection was instigated by a different voice: that of former President Trump, broadcasting his own belligerent and incendiary messages for months to tens of thousands of cultist followers.
The Sentencing Guidelines and Seditious Conspiracy
First, here is a reminder of how the U.S. Sentencing Guidelines work. Basically, they provide judges with a recommended sentencing range for each defendant. Though the guidelines were originally intended to be mandatory, in 2005, the U.S. Supreme Court declared them to be only “advisory.”
First, the judge—or, initially, the probation department—computes a numerical “offense severity” level representing the seriousness of what the defendant did. The U.S. Sentencing Guidelines provide various rules and formulas for coming up with this figure. Second, the judge determines which of six “personal history” groupings the defendant falls into, ranging from Level I, for those with virtually no criminal history, to Level VI, for those with a long history of serious prior criminal convictions.
Finally, the judge turns to the guidelines’ sentencing table, which arrays ascending offense severities down the left column and increasingly grave personal history groupings along the top rank. At the intersection of the defendant’s offense severity and his or her personal history grouping will be a range of months that constitute his or her sentencing guidelines.
The first step for calculating the offense severity is to find the “baseline” offense severity provided for a given crime. The baseline for obstruction of justice offenses, for instance, is 14. That number is then adjusted both upward and downward in accordance with many potential enhancements and reductions. A leadership role in a crime with multiple participants will result in a two- to four-point upward enhancement, for instance, while a guilty plea will typically result in a two- or three-point reduction for acceptance of responsibility.
The guidelines specify no baseline offense level for seditious conspiracy. For crimes with no specified baseline offense level, one is supposed to use the level for the “most analogous offense.” The closest analogy for seditious conspiracy is treason, according to precedents.
Treason, not surprisingly, carries a crushing baseline offense level of 43. That figure, unless mitigated by downward adjustments, is sufficient alone to recommend life imprisonment for even a first offender. (Any defendant’s actual sentence will be limited by the maximum terms of the crimes he or she was convicted of—although some terms can be imposed consecutively.)
The sentencing guideline for treason contains a crucial proviso, however. The offense severity of 43 is to be used only if what the defendant did is “tantamount to waging war against the United States.” Otherwise, one is supposed to use the baseline level for the next “most analogous offense.”
In its sentencing memorandum, the government concedes that the allegations of the Oath Keepers cases, which were not brought under the “levying war” prong of the seditious conspiracy statute, are not “tantamount to waging war against the United States.” Instead, it takes the position that the most analogous crime is conspiracy to corruptly obstruct an official proceeding, 18 U.S.C. §1512(k), with which all these defendants were also charged. That offense, because it is a species of obstruction of justice, carries a 14-point baseline offense severity. After various upward adjustments based on the particulars of the case—and even before adding the terrorism enhancement—the offense severities for each of the nine defendants range from 29 for Moerschel, the lowest-level actor here, to 33 for Rhodes, Meggs, and Watkins.
As far as I can tell, all previous seditious conspiracy sentencings since the adoption of the Sentencing Guidelines have involved prosecutions that were very clearly “tantamount to waging war against the United States.” All appear to have been brought under the “levying war” clause of the seditious conspiracy statute. Most, if not all, involved jihadism and, in several instances, the seditious conspiracy charge was not even the top count.
In United States v. Omar Abdel Rahman, for instance, all 10 defendants were sentenced to the 20-year maximum for seditious conspiracy for their plot to bomb the World Trade Center (which was partially successful), the Lincoln and Holland Tunnels, the George Washington Bridge, and to commit other acts of terrorism in the U.S. and abroad. Rahman’s overall sentence was life imprisonment, due to his conviction for conspiring to murder a foreign official—President Hosni Mubarak of Egypt—which was also an object of the conspiracy.
At least four other seditious conspiracy sentences since Rahman involved conspiracies to levy war against U.S. troops in Afghanistan by fighting alongside various jihadist groups, including al-Qaeda and the Taliban. These include the cases of Jeffrey Battle and Patrice Lumumba Ford; Masoud Ahmad Khan; and Ali Al-Timimi. In 2003, Battle and Ford were sentenced to 18 years each after pleading guilty. In 2005, Khan and Timimi were each sentenced to life imprisonment, although their sentences on the seditious conspiracy counts were 10 years each. (I have not succeeded in finding out why these relatively low terms were imposed on those counts.)
At least one jihadist was sentenced to an overall term shorter than what the government now seeks in seven of the nine Oath Keeper cases. In 2009, Narseal Batiste was convicted of multiple crimes, including seditious conspiracy—under the “levying war” clause—for conspiring with a terrorist organization to bomb the Sears Tower in Chicago and multiple FBI buildings in Florida. The government, using the sentencing guidelines for treason, argued that Batiste should receive the statutory maximum that all his convictions, imposed consecutively, would permit: 840 months (70 years). Nevertheless, U.S. District Judge Joan Lenard of the Southern District of Florida sentenced Batiste to 13.5 years. Though the judge’s reasoning is not explicit from the record, Batiste’s lawyer had stressed that his crime was very inchoate: no one was hurt; he’d collected no weapons; he had no prior convictions; and he had four children and a devoted wife. (Perhaps it is worth mentioning that Batiste was convicted only at his third trial; his first two ended in hung juries.)
Terrorism Enhancements
While the government concedes that the “treason” guideline is inapplicable here, it also argues that the “obstruction of justice” baseline offense severity must be augmented with a “terrorism enhancement.”
The guidelines have, in effect, two flavors of terrorism enhancement. One is devastatingly onerous—much like the treason guideline itself—and applies when a crime “promotes” a “federal crime of terrorism” as defined in 18 U.S.C. §2332b(g)(5). That statute focuses on “terrorism transcending national boundaries” and lists a series of specific qualifying offenses that aren’t implicated in the Oath Keepers case, like airline piracy or providing material support to a terrorist organization.
In such cases, the terrorism enhancement not only raises the offense severity by at least 12 levels, but also catapults the defendant into the personal history level normally reserved for the most incorrigible lifetime criminals, Level VI—even if, in fact, the defendant has no criminal record at all.
The government could not, and does not, seek this enhancement. But in the fourth paragraph of the “commentaries” to that enhancement, the Sentencing Commission creates a more modest, catchall enhancement for crimes not specifically designated as “crimes of terrorism.” There, it says that a judge can impose a terrorism enhancement for non-listed crimes if the offense “was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct.” The prosecutors write:
When it adopted Note 4, the Sentencing Commission explained that it is “an encouraged, structured upward departure,” the purpose of which is to provide courts with “a viable tool to account for the harm involved during the commission of these offenses on a case-by-case basis” and to “make[] it possible to impose punishment equal in severity to that which would have been imposed if the [terrorism enhancement] actually applied.”
Applying this less draconian terrorism enhancement, the government seeks a six-point offense severity enhancement for Rhodes; a four-point enhancement for Meggs; a three-point enhancement for Watkins, Minuta, Vallejo, Harrelson, and Caldwell; and a one-point enhancement for Hackett and Moerschel. (Enhancement under paragraph four of the commentaries does not mention changing a defendant’s “personal history” grouping, and the government does not seek to do that.)
Difficult Choices for Judge Mehta
Judge Mehta obviously faces wrenching decisions in all of these sentencings. As I mentioned above, the most questionable of the government’s recommendations, in my view, are those proposed for the three defendants who were acquitted of seditious conspiracy: Watkins, Harrelson, and Caldwell.
Caldwell’s sentencing will be especially challenging. Caldwell helped choose the Comfort Inn location that the Oath Keepers used for three of their QRFs. He even discussed—in bizarre messages that others, including Meggs, appeared to take seriously—a preposterous plan to ferry weapons across the Potomac in case bridges were out of commission on Jan. 6.
But Caldwell was acquitted of all three conspiracy charges—the only charges to which the QRFs seem to relate. Caldwell, about 67, is a retired Navy veteran on full-disability with no prior convictions. He was convicted of a substantive count of corrupt obstruction of an official proceeding and of destroying evidence. He also took the witness stand at trial and, in the government’s view—and mine—lied.
Still, if one takes seriously the jury’s verdicts on his conspiracy charges, what Caldwell actually did on Jan. 6 was engage in nonviolent trespassing on restricted Capitol grounds outside the Capitol building. He was not a dues-paying Oath Keeper (the government classifies him as an “Oath Keeper associate”); was not dressed in militia-style clothing; did not enter the Capitol; was on the opposite side of the Capitol from the nearly 20 other Oath Keepers who scaled the East Capitol steps in “stack formation”; and had minimal contact with those other Oath Keepers on Jan. 6. Absent the conspiracy allegations of which Caldwell was acquitted, Caldwell’s acts would have most likely resulted in either no charges at all or class A misdemeanor charges carrying a maximum one-year jail term. Yet the government seeks 14 years imprisonment for him—just two months less than career criminal Schwartz received for, inter alia, four assaults with a dangerous weapon on police officers.
The other defendants, of course, also raise special mitigating considerations relating to either their roles on Jan. 6 or their life circumstances. Their counsel maintain that these circumstances warrant either recomputation of their guidelines or, simply, mercy.
But for the top defendant, Stewart Rhodes, it’s hard to see many extenuating circumstances. His counsel filed an unusually slim, 16-page sentencing memorandum on his behalf. It does not mention his wife or six children even once—doubtless because his estranged wife has been an outspoken advocate of keeping him confined for as long as possible. The government has submitted, as sentencing exhibits, excerpts of its interviews with her about Rhodes’ alleged incorrigible commitment to “violence,” “mayhem,” and “revolution,” and his physical abuse of both her and their children.
Rhodes’ attorneys do ask, however, for downward departures from the sentencing guidelines in light of his service in the U.S. Army from 1983 to 1989 and also because—wait for it—he founded and led the Oath Keepers for 12 years:
Perhaps one of the most important factors ... to consider ... is Mr. Rhodes founding and establishment of an entirely volunteer organization named the Oath Keepers. . . . [I]t is imperative that the Court give great deference to Mr. Rhodes for his 12 years of service and dedication of the Oath keepers, as evinced through the organization’s history of community involvement and volunteerism in times of natural disasters and civil unrest, in the determination and imposition of the sentence in this case. It should be stated that the perception cultivated and amplified by some mainstream media outlets, politicians, and activists portraying the Oath Keepers as a “right-wing extremist” group is simply not borne out by the facts. Assisting fellow citizens in times of natural disasters, protecting them when under siege from rioters and upholding the United States Constitution are not “extreme” ideals, they are American ideals.
Accordingly, Rhodes’ attorneys ask for Judge Mehta to sentence him to “time served,” meaning immediate release.
For Rhodes, who led at least 26 charged individuals to the Jan. 6 insurrection, inspiring them for months with talk of “bloody revolution” and “civil war,” that outcome seems unlikely. Rather, a terrorism enhancement for him seems appropriate and, indeed, unavoidable.
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