Jury Is Out
What the jury couldn’t/didn’t decide in the Oath Keeper’s case.
The split verdict by the jury in Federal District Court in Washington, November 30, reveals a fault line in investigating and prosecuting charges of insurrection leading up to and including the violent attack on the Capitol, January 6.
The Oath Keeper’s leader, Stewart Rhodes and co-defendant Kelly Meggs, were convicted of seditious conspiracy “to keep former President Donald J. Trump in power… Mr. Rhodes, 57, was also found guilty of obstructing the certification of the election during a joint session of Congress on January 6 and of destroying evidence in the case…
“Mr. Rhodes was… acquitted of two different conspiracy charges: one that accused him of plotting to disrupt the election certification in advance of January 6 and the other of planning to stop members of Congress from discharging their duties that day.” (1)
Also acquitted were Kenneth Harrelson, Jessica Watkins, and Thomas Caldwell, as well, of the three charges against Rhodes and Meggs. (2)
Consider that the baffling nature of a split verdict in this case, the most serious verdict in the 20 plus January 6 criminal cases heard so far (3) demonstrates the weight of contending with the novelty of seditious conspiracy….and reveals the traction of evidence showing mob incitement to violently impede the peaceful transfer of power, January 6.
Consider that the upshot of the split verdict is like saying a fire is caused by spontaneous combustion, not matches. Experience tells us that both apply, which is not to say that determining which one caused the fire, excludes the other. Translation: where were your hands?
Consider this split verdict as a further retreat into the rabbit hole of “who knew”? Take Trump’s infamous rally on the Ellipse, January 6: Is this political rhetoric fueled by blind passion or inciting an insurrection and violence against members of Congress and those charged with defending them? Trump called the mob off: does this mean the mob leaders were taking direction from Trump?
Consider that our institutions designed to protect investigating wrongdoing, risk delaying and dismissing the weighing of evidence.
The prosecution’s evidence relied on email and text transcripts, witness accounts and video footage, and the presence of a cache of weapons…this was sufficient for the jury to levy seditious conspiracy charges against the leaders, but insufficient to claim the other three co-defendants’ complicity, including one who was guarding the cache of weapons in Virginia.
Hold on: Was the split verdict raising questions about how to proceed with further prosecution?
Consider that in retrospect the DOJ given the opportunity for building a case against organized mob violence, provided for public accountability a narrow view of sedition: a magnifying glass, not a net.
The acquitted charges were specifically the ones shrouded in ‘noise:’ the online chatter didn’t make explicit plans of insurrection.
“… acquitted of two different conspiracy charges: one that accused him of plotting to disrupt the election certification in advance of January 6 and the other of planning to stop members of Congress from discharging their duties that day.”
On the level of assessing blame, the jury’s verdict provided a counter- defense defense of their decision: the jurors sent a message for future prosecution, ‘keep your powder dry.’
Translation: We know you’re not finished. But we are finished with you: ‘we know our verdict will be appealed;’ so we are simply saying, “we’re done.”
The acquittals infer the difficulty in linking the momentum behind “election denial” to seditious conspiracy: when was the line crossed into ‘attempted violent overthrow?’
Consider that what was planned was a conspiracy to obstruct (hard to pin on a sitting President, we know) the deliberation of blame. Rhodes’ defense, a kind of ‘who me?’ swan song attempted to lay blame on Antifa, their ‘ostensible presence.’
January 6 eyewitness Robert Draper writes in “Weapons of Mass Delusion,”
“…In MAGA theology, repeated as daily catechism across the conservative media ecosystem, it was never we but rather they — Antifa, Black Lives Matter, the paradoxically effeminate and easily-brought-to-tears socialist left — who resorted to deadly violence. This, despite the omnipresence of heavily armed Proud Boys and Oath Keepers and Three Percent Militia, whose plans for combat today would later be a matter of public record.
The cognitive dissonance of January 6 was therefore so jarring that only a circular logic could ease the confusion. The enemy was nowhere in sight. It was, in fact, not there at all. But because violence was there, so was Antifa, by definition.”
-p. 449
Within hours of the verdict announcement, AG Merrick Garland convened a meeting with the press. Surrounded by his Assistant AG’s and flags, Garland congratulated the DOJ prosecutors for their work. In his characteristic ‘blandly-cautious-yet-emphatic manner,’ Garland didn’t delve deeper into the meaning of the split verdict. Rather Garland repeated his and the department’s promise to pursue wrongdoing… ‘wherever the evidence takes us.’ And repeated…’won’t comment further, there is an ongoing investigation.’
Exit.
Alan Feuer writes December 1 in the New York Times,
“Attorney General Merrick S. Garland seemed to capture the equivocal nature of the verdicts, highlighting the positive aspects of the outcome and skipping over the negative.
The jury found all the defendants ‘guilty of serious felony charges,’ Mr. Garland said…’As the verdict of this case makes clear, the department will work tirelessly to hold accountable those responsible for crimes related to the attack on Jan. 6, 2021.” (4)
What worked for the three counts of ‘seditious conspiracy,’ the old paradigm was employed, ‘let the evidence drive — not the portentousness of a verdict — the interpretation and weighing of evidence…’
However, one can argue that by claiming seditious conspiracy — a little traveled route — the DOJ team opens the door to legal equivocation about criminality.
Has the DOJ potentially handcuffed its prosecution of future co-defendants?
“…But prosecutors plan to use a different — and novel — strategy in their efforts to prove the sedition charges against the Proud Boys, suggesting that Mr. Rhodes trial may not be as much of a model.
In convicting Mr. Rhodes, the government focused on the storehouse of weapons in Virginia, claiming that they formed the basis for the central element of the sedition charge: that the Oath Keepers plotted to use force to stop the lawful transfer of power. Mr. Rhodes and most of his co-defendants did not commit any serious acts of violence themselves on Jan. 6, but the jury apparently found that the weapons stashed across the river presented a threat of force sufficient to convict.” (5)
Like the stored cache of weapons, Trump and allies, John Eastman, Rudy Giuliani, Roger Stone, Michael Flynn, didn’t threaten violence, rather they predicted there would be violence, a Mafia tactic: ‘I am going to hurt you (threat) versus you may get hurt (self-risk). Cue organized crime, gang intimidation on the streets of Chicago, well-known to the former Chicago DA, Garland.
Consider: is the intent to follow the evidence, where public apprehension is rendered, capable of surpassing the ‘this can’t be happening,’ sensation of abject denial?
One scenario to where Garland and company are heading: more trials, more investigations.
Does this mean more accountability?
With respect to General Garland, therein lies the frustration.
December 3–6
Notes
1- “Oath Keepers Leader Convicted of Sedition in a Key Jan. 6 Case,” Alan Feuer and Zach Montague, New York Times, November 30
2- Of the remaining co-defendants in the trial verdict, Charles Donohoe and Jeremy Bertino pleaded guilty. Feuer and Montague, ibid.
3- “The sedition convictions marked the first time in nearly 20 trials related to the Capitol attack that a jury had decided that the violence that erupted on January 6, 2021, was the product of an organized conspiracy.” Feuer and Montague, ibid.
4- “How the Oath Keepers Trial Could Affect Coming Jan. 6 Cases,” Alan Feuer, New York Times, December 1
Comment: Today, Garland was mildly reassuring. Unlike Comey, a not so distant ‘events’ prognosticator, Garland is not a grandstander; rather he is an observer. He lives not for the moment but through the consequence of his presence, collected in his announcements. “The man behind the title.” Held up to the public light, for many, Garland comes off as self-effacing, lacking conviction.
5-ibid.
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