The DOJ has its work cut out after charging 11 Capitol riot defendants with seditious conspiracy, 'the closest crime we have to treason'

• The DOJ's Capitol riot probe took a big step forward when 11 people were charged with seditious conspiracy.
• One legal expert said the charge represents "the closest crime we have to treason."

The Justice Department on Thursday silenced critics who accused it of being too lenient in the Capitol riot investigation when it charged the leader of the far-right extremist group Oath Keepers and ten others with seditious conspiracy.

It's the most significant charge yet in the department's sprawling investigation into the deadly Capitol siege on January 6, 2021 that resulted in the deaths of at least seven people.

The 48-page indictment alleges that the defendants planned the Capitol siege in advance and accuses them of attempting to use force to disrupt the peaceful transfer of power. In bringing seditious conspiracy charges, experts said, the Justice Department confirmed that it sees at least some elements of the Capitol riot as a coup attempt.

The federal seditious conspiracy statute makes it a crime for two or more people to conspire to overthrow, put down, or destroy by force the United States government. It's also a crime to use force to prevent, hinder, or delay the execution of any law of the United States.

Barbara McQuade, the former US attorney for the Eastern District of Michigan, told Insider that it's a "very serious charge and is rarely used."

In charging Oath Keepers leader Elmer Stewart Rhodes and ten others with seditious conspiracy, the Justice Department is acknowledging that the January 6 riot "was a threat to our democracy, not a simple protest that got out of hand," McQuade added.

Asha Rangappa, a director of admissions at Yale University's Jackson Institute for Global Affairs, noted that seditious conspiracy is "the closest crime we have to treason."

Harry Litman, a longtime former federal prosecutor, also pointed out that the charges fly in the face of those who have criticized the Justice Department for showing too much leniency toward those involved in the failed insurrection.

"Those who say DOJ hasn't delivered on the most serious charges have to be quieted today," Litman wrote after the charges were unsealed. "Seditious conspiracy is about as serious as it gets."

The sweeping indictment alleged that Rhodes and other co-defendants conspired to "oppose by force the lawful transfer of presidential power."

It went on to say that core members of the Oath Keepers not only forced their way into the Capitol but also extensively planned for the siege beforehand, communicating on encrypted messaging apps from December 2020 onward, keeping a "quick reaction force" on standby at a Virginia hotel, and in some cases bringing weapons to Washington, DC, on January 6.

Neama Rahmani, a former federal prosecutor, told Insider that a seditious conspiracy indictment "requires an agreement to overthrow the United States government or to prevent the execution of United States law by force, and one overt act in furtherance of the conspiracy."

In this case, he added, the US Capitol was breached, which would "easily satisfy" the overt act element.

Rhodes, for his part, repeatedly said during interviews with the right-wing conspiracy theorist Alex Jones that he and others were prepared to take extraordinary measures to keep then-President Donald Trump in power.

Shortly after the November 2020 election, for instance, he said on Jones' Infowars show that he had armed men stationed outside Washington, DC, who were "prepared to go in if the president calls us up."

And on January 20, 2021, two weeks after the failed insurrection and on the day Joe Biden was sworn into office, Rhodes again appeared on Jones' show and urged "local militias" to "get together" and fight the "illegitimate" Biden administration.

The DOJ has its work cut out for it

That said, there have been relatively few federal cases involving the Civil War-era charge in US history, and the Justice Department has an uphill battle to fight in making the case against Rhodes and his co-defendants.

The last time federal prosecutors secured a seditious conspiracy conviction was in 1995, when Sheikh Omar Abdel-Rahman, known as the "blind Sheikh," and nine others were found guilty in connection to their plan to blow up a bridge and two tunnels between New York and New Jersey, the United Nations headquarters, and the FBI's headquarters.

Four decades earlier, four Puerto Rican activists and more than a dozen others were convicted of seditious conspiracy after they stormed the US Capitol in 1954 and opened fire on the floor of the House of Representatives, the Associated Press reported.

The Justice Department also brought seditious conspiracy charges in a 2010 case in which nine members of a Michigan militia were accused of planning to kill a member of local law enforcement and attack law enforcement officers who would gather for the funeral. According to the AP, a judge ordered acquittals on the seditious conspiracy charges because he didn't believe prosecutors had proven that the defendants explicitly planned for a rebellion.

The department last brought sedition charges connected to white-supremacist violence in 1987, when it charged 13 white supremacists in Arkansas with conspiring to overthrow the federal government, said Kathleen Belew, a historian and assistant professor at the University of Chicago. But prosecutors failed to secure convictions in the trial, and all 13 defendants were acquitted.

McQuade told Insider that although there are few seditious conspiracy cases in US history that resulted in convictions, "the evidence here looks strong."

She noted that the encrypted communications between Rhodes and others which appear to show them planning ahead for the Capitol riot "will make for devastating evidence."

The next question, legal scholars said, is whether any of the defendants will strike cooperation deals, and who else may have been involved.

"The question that I have moving forward from this indictment is just how high does this conspiracy go?" Joyce Vance, a former federal prosecutor and a professor at the University of Alabama School of Law, told MSNBC after Thursday's charges were revealed.

McQuade echoed that: Were any "Trump advisors working with the Oath Keepers to plan the attack? Who funded their travel and equipment? With a potential 20-year sentence for seditious conspiracy, DOJ now has leverage to see if they can obtain evidence from these defendants against others higher up in the chain."

Rhodes has said he never entered the US Capitol on January 6, and his lawyer, Jon Moseley, told a local CBS affiliate that his client was arrested as part of a political fishing expedition by Democrats.

"I don't think any of these charges can be proven at trial," Moseley told CBS 11.