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Reviews | What does the new Jan. 6 DOJ sedition indictment mean for Trump?




Trump held a rally outside the White House on the morning of January 6, 2021. | Samuel Corum/Getty Images

The usual caveats apply: beyond what has been disclosed in court records, the mechanics and investigative work product of the department’s investigation are largely secret, and predictions are still a risky business. One could reasonably consider the conspiracy charge to be part of a potential lead that could lead to a possible prosecution of Trump. But there’s good reason to doubt the department is actually moving closer to indicting Trump for his role in the events of Jan. 6 or his conduct to date.

One thing is clear, and that is that the indictment represents the kind of incremental but significant progress that Attorney General Merrick Garland promised in his Jan. 6 speech earlier this month. Nine of the 10 people charged alongside Oath Keepers founder Stewart Rhodes were already charged, but they and Rhodes now face the charge of seditious conspiracy in addition to the pending charges. The outlines of the accused’s conspiracy had been outlined in earlier indictment documents, but the latest indictment provides a fuller and more detailed account that includes numerous communications involving Rhodes himself, a particularly useful compendium for those of ‘among us who are unable to follow all the day-to-day ins and outs of the trials, which now involve more than 700 defendants.

The charge of seditious conspiracy has rightly drawn a great deal of attention in light of public discourse in recent months. According to reports last summer, Garland himself was reluctant to charge anyone with sedition based on sound political, legal and practical concerns, so the government used legally comparable charges related to obstruction of a formal procedure, and he could continue to do so in any case. but the most serious cases.

Besides the fact that the department has gathered new evidence since then, the question of whether to charge someone with sedition has taken on greater political importance in recent months. On the left, some observers had criticized the department for not invoking a charge like sedition or inciting insurrection, which they said came closer to the political and legal significance of Jan. 6. Perhaps more importantly, however, many people on the right had been insisting on the absence of those charges and, like Rubio, had downplayed the investigation and the gravity of the day’s events. This public campaign may have prompted the department to do something to reaffirm the importance of its work and place the day’s events in proper context.

Does the latest Oath Keepers indictment provide additional reason to believe that Trump could be charged with seditious conspiracy or conspiracy to obstruct certification? After all, oath keepers provided security for Republican operative and longtime Trump adviser Roger Stone on Jan. 6, and prosecutors may eventually uncover evidence that Stone was communicating with Trumpworld, the White House, or Trump. himself about the violent plan that the government has alleged. .

If Trump knew about, facilitated or encouraged the alleged conspiracy, he could be deemed to have joined in it, which would make him criminally guilty of the conspiracy itself and any other reasonably foreseeable criminal acts committed in connection with the conspiracy, including including, for example, obstructing the certification itself, destroying government property, or assaulting federal officials, which have also been alleged. If this happened through Stone, whether Stone communicated with Trump through an intermediary at Trumpworld or the White House, or whether he communicated directly with Trump himself, that might be enough. What counts as joining a conspiracy is usually tied to facts and context and is ultimately up to a jury to decide. But the agreement between co-conspirators doesn’t have to be explicit, and you don’t need to know everyone involved or all the details of the plan to be criminally liable.

Accordingly, the fact that the government has now risen even higher in the hierarchy of oath-keepers would seem to fuel the theory that the Justice Department simply proceeds as it always does in large and complex bottom-up criminal investigations. the bottom. the top and that criticism of Garland and the department for not investigating Trump more aggressively is misplaced. It’s a theory that has been articulated by some increasingly exasperated Garland defenders, who also posit that the department could eventually reach Trump through someone like Alex Jones whose right-hand man, Owen Shroyer, has already been charged, which helped organize the precedent. rally that day and who said White House officials told him to drive people to the Capitol.

Members of the Oath Keepers militia on the steps of the Capitol on January 6. | Manuel Balce Ceneta/AP Photo

These claims about how investigations generally go aren’t frivolous, but they aren’t as obvious as their proponents claim. For one thing, government doesn’t always operate that way, as I can attest to in a limited way from my experience in prosecuting an international financial fraud that defrauded victims of approximately $150 million. The first prosecution that began in this case involved the CEO of the criminal enterprise partly because of the way events unfolded in this investigation, but also because I didn’t want to get into a chore of unnecessary prosecution of several years. people higher and higher when I saw an opening and a path to charge the CEO very early. Other prosecutors can tell similar stories.

As with January 6, large corporations and criminal events do not always involve clear lines of authority or organizational charts outlining everyone involved in the way you might see if you were investigating misconduct at a large financial institution. They may also involve multiple, perhaps overlapping conspiracies of varying levels of complexity and power, rather than a hypothetical pyramid structure in which each has a single goal. What determined prosecutors typically seek are leverage points and opportunities, ideally involving the most important players possible and as early as possible in the investigation.

None of us ultimately knows what Garland and her team of prosecutors have in mind or hope to accomplish. I tend to believe that if they were to seriously examine Trump’s criminal exposure for his post-election conduct, we would see significant indications that they were pursuing more direct avenues of inquiry, such as a federal investigation into the infamous Trump’s call with Georgian Secretary of State Brad Raffensperger (which appears to have been left to local prosecutors in Georgia), or investigating what happened at the White House on January 6 (which appears to have been left to the committee House special, at least for now).

Prosecutors use disreputable people as co-operators all the time, but if you had the potential to use someone like Mark Meadows as a co-operator against Trump, which they do, that would be much better than hoping to spawn a path to Trump through oath keepers and people. like Stone or Jones, who have well-documented stories of lying.

Time isn’t on the Justice Department’s side either, which is another reason to be skeptical about the idea of ​​prosecutors aggressively pursuing Trump in the Jan. 6 prosecution, let alone that they don’t. never charge him. If Republicans take over one or both houses of Congress, they risk making the department’s investigation as difficult as possible through watchdog hearings and media appearances. And if Trump announces a 2024 re-election bid, it’s hard to imagine the department under Garland would seriously consider indicting him, because it will look like an effort to steer Biden’s election.

None of this is meant to negate the significance of the latest indictment, but if you’re interested in what it means for Trump, then, as with anything about the man, a healthy dose of caution. and skepticism remains.




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