What is seditious conspiracy?

The leader and other members of the right-wing militia group Oath Keepers are set to stand trial next week, facing some of the most serious charges stemming from the Jan. 6, 2021, insurrection. 

Stewart Rhodes and the four other Oath Keepers are facing charges of seditious conspiracy, along with obstructing an official proceeding, conspiring to obstruct an official proceeding and conspiracy to prevent an officer of the United States from discharging a duty. 

If convicted of seditious conspiracy, Rhodes and the other defendants could face a maximum of 20 years in prison. 

Federal law defines seditious conspiracy as two or more people conspiring to “overthrow, put down, or to destroy by force the Government of the United State,” to levy war against the government or to oppose the federal government’s authority by force. It also includes using force to prevent, hinder or delay the execution of any law or using force to seize, take or possess any property belonging to the country against its own authority. 

The Justice Department said in the release announcing Rhodes’s indictment in January that he and other co-conspirators made plans to travel to Washington on Jan. 6, 2021, to stop the certification of the Electoral College results of the 2020 presidential election. It states that they made plans to bring weapons to support their operation. 

The indictment for seditious conspiracy states that they organized into teams that were ready to use force and transport weapons into Washington, recruited members to join the conspiracy and organized trainings to teach and learn paramilitary combat tactics. 

It also states that they brought paramilitary gear and weapons to the Capitol, attempted to take control of the grounds and continued to plan to oppose the peaceful transfer of power after Jan. 6, using social media, texts and encrypted messaging apps with co-conspirators. 

The federal law against seditious conspiracy was enacted in the aftermath of the start of the Civil War in the 1860s to add a tool for the federal government to prosecute rebels. Confederates were widely granted pardons after the war ended. 

The seditious conspiracy law has been rarely used throughout U.S. history since it was enacted, and convictions under the law are also rare, as it can be difficult to prove. 

NPR reported that the last time seditious conspiracy charges were brought was in 2010 against a far-right militia in Michigan called Hutaree. A judge determined there was insufficient evidence of a conspiracy and dismissed the case. 

The last guilty verdict for seditious conspiracy happened almost 30 years ago. 

Rhodes’s attorneys argued that he and other members of the Oath Keepers were not present in D.C. to storm the Capitol and take over the government but were waiting for then-President Trump to invoke the Insurrection Act, under which the president can take authority of the National Guard to suppress a rebellion. 

The Oath Keepers believed that militias would be needed to help defend the insurrection declaration, Rhodes’s legal team argued. 

Prosecutors have said Rhodes’s defense on the grounds of defending an insurrection declaration is not enough to overcome the seditious conspiracy charge, and a president could not give private militia groups the authority to enforce the law, The New York Times reported. 

Six other members of the Oath Keepers were also charged in the case. Four of them are scheduled to go on trial in late November, and two pleaded guilty and agreed to cooperate with investigators. 

Rhodes’s trial is expected to last about five weeks.