How the Oath Keepers Seditious Conspiracy Verdict Could Lead to Trump

December 3rd, 2022

Awake Goy

This content comes from the latest installment of our weekly Breaking the Vote newsletter out of VICE News’ D.C. bureau, tracking the ongoing efforts to undermine the democratic process in America. Sign up here to get it in your inbox every Friday.

By now you’ve heard about Nick Fuentes’ and Ye’s full-blown Nazi performance on Alex Jones’ “InfoWars” show yesterday. The proudly antisemitic, Hitler-praising appearance speaks for itself, but this is a great opportunity to point you toward two things: 1. Tess Owen’s new and definitive VICE News profile of Fuentes, the neo-Nazi who just dined with the leader of the GOP; and 2. House Republicans made the choice every day for 56 days to leave this tweet up before finally deleting it yesterday. All it took was two hours of praise for Hitler!

Stewart in the stir

A federal jury this week convicted Oath Keepers founder Stewart Rhodes and another militia member of seditious conspiracy for their plan to use force to stop Congress from certifying Joe Biden’s election on Jan. 6, 2021. Three others were found guilty of a mix of other felonies. Another group of Oath Keepers goes on trial next week, and a separate group of Proud Boys is set to stand trial for seditious conspiracy later this month.

I called up Harry Litman, a former federal prosecutor, assistant AG, and host of the Talking Feds podcast (check out their new YouTube channel!) to talk about the verdict and what it could mean for prosecuting the coup attempt.

In the scope of accountability for Jan. 6 and the broader coup attempt, how big of a deal is this verdict?

I think it's a really big deal. It’s a tough charge. DOJ rarely brings it. And they were aware of that before pulling the trigger. Everyone got convicted of serious charges. Everyone’s going to see serious time. And as a prosecutor, seditious conspiracy is a big-ticket item that can lead to others who are connected to the marauders on Jan. 6.

I think it’s bigger than that though, because I think it echoes in history. We’ve had pundits and politicians trivializing Jan. 6, calling it a political protest or free speech gone just a little too far. But 12 persons good and true looked at evidence presented over seven weeks and said this was a seditious conspiracy, an actual attempt to impede government by force. That’s a big friggin’ deal. And I think it just goes a long way to settling it as a social fact.

One question is a potential nexus between this conspiracy and the White House. Roger Stone was in DC with Oath Keepers on Jan. 6. He texted with Oath Keepers and Proud Boys. Cassidy Hutchinson testified in the January 6 committee that Trump ordered Meadows to call Stone on the evening of Jan. 5. Are prosecutors any closer to that nexus given what we heard in this trial?

We don’t know how close they were before. But I think there’s no doubt that their resolve is to get there, if there’s evidence. It’s always been the case that the apparent malfeasance of Trump, Meadows and the inner circle was indirect, through conduits. That’s what the Willard war room was. In legal terms a conspiracy is just an agreement to do something unlawful and an overt act in furtherance. If Stone agrees with Rhodes and Meadows agrees with Stone and Trump agrees with Meadows, that’s all one conspiracy where everyone shares criminal liability. If it gets to the White House I think it almost certainly goes through that crowd.

Does the fact that several Oath Keeper defendants got convicted on conspiracy to obstruct an official proceeding make it any more likely that Trump could have legal exposure on that charge? Is there a proof of concept here that matters?

It’s a really good and nuanced question.

Thanks. I always wanted to audit a law class.

A conspiracy can be sprawling and you can do different things, but it must be the same agreement. So for that charge, there’s already public evidence, starting at the Ellipse on Jan. 6 and including his indifference—his jubilation!—as the melee was going down. But did he make the same agreement to basically by force, deter or stop or impede the January 6 proceeding in Congress? That’s what Rhodes is on the hook for. But the short answer is, yes. Did Trump join it to be part of the same agreement, even through others?

Let’s talk about Fulton County, Georgia real quick. Experts we’ve talked to there put the chances of Trump getting charged better than 50/50. How about you?

More like 75%. DA Fani Willis says she wants to do it. It’s almost hard to imagine her not doing it.

But I will also say this: A local DA indicting a former president is a heavy thing. I think she’ll bring charges and I think they will be tied up in labyrinthian legal proceedings. I think the odds right now of her bringing them are higher than in Mar-a-Lago, but I think the odds of conviction in Fulton County are lower. Georgia state juries can be a wild card. So I think they are very close to the starting line and are going to charge, but pretty far from the finish line and may well not get there in Georgia.

Are you happy as a prosecutor that Trump is on tape asking for votes?

You can play that tape, and maybe Cassidy Hutchinson then says he knew they lost, then almost rest the case. It just doesn’t get better. What beautiful evidence.

My sup-precious

The good news is that Georgia has been smashing early-vote records before Tuesday’s Senate runoff between Sen. Raphael Warnock and Herschel Walker. The bad news is that eager voters are crammed into a much narrower voting window, thanks to the Georgia GOP’s 2021 voter suppression law.

T.W.I.S.™ Notes

One case of militia sedition down, and two more to go. Meanwhile, the courts and grand juries are humming, and it’s been a big This Week in Subpoenas.

- This one went to the 11th

Big news: The 11th Circuit Court of Appeals backed up DOJ and vacated the special master review Trump was using to slow down the Mar-a-Lago records case. Now the layer of protection Judge Aileen Cannon put in place to protect Trump from prosecutors is gone. Because literally no one else gets to challenge a search warrant during a criminal investigation! It has more than one expert predicting that with this impediment gone, Trump could soon be indicted.

A three-judge panel—all Republican appointees—eviscerated Judge Cannon’s ruling installing the special master and made it clear they’re not giving Trump the special treatment he expects.

- Manifestly Mark

Former Trump chief of staff Mark Meadows is going to have to testify in the criminal investigation into the 2020 coup attempt in Georgia. The Supreme Court in South Carolina, where Meadows now lives, unanimously turned down his appeals against appearing in the grand jury. “Manifestly without merit” is how the five South Carolina judges described Meadows’ attempt to quash his subpoena.

Meadows is all over Trump’s attempt to steal the Georgia election, and could be the most important and informed witness to testify. Willis has said she could start issuing indictments this month.

- The panned from uncle

Former Trump speech writer and unpopular nephew Stephen Miller testified this week in the federal grand jury investigating the coup attempt. Miller reportedly appeared on Tuesday, where he was surely asked about his conversations with Trump on the morning of Jan. 6.

Cement the steal

Democracy definitely kicked a little bit of ass recently, in criminal court and in the midterms. But can it survive the nine-headed, black-robed, rightward-careening final boss that is the conservative U.S. Supreme Court?

Pro-democracy analysts are sounding the alarm about Moore v Harper, the case testing “independent state legislature” doctrine coming up for oral arguments next Wednesday. The case could allow six conservative justices to strip state courts and governors of their ability to police legislatures trying to skew elections. Best case: SCOTUS gives state legislatures the sole authority to draw federal election maps and gerrymander the life out of their congressional elections. Worst case: Those same legislatures, drunk on partisanship and authoritarianism, get the power to ignore voters, overturn elections, and pick their own electors in presidential contests. (Imagine the “worst case” in a world where a presidential candidate is claiming widespread fraud after years of cleansing his party of anyone who’s not part of the ruse! You get the picture.)

Some analysts think the panic over Moore v Harper is overblown. But say you live in Wisconsin, where Democrats win statewide for governor and president, but the state legislature is already gerrymandered worse than three-to-two for Republicans. An unrestrained legislature free to make the rules for elections may not feel super-democratic. That would have a predictably bad effect on voters’ confidence. The case should be decided by spring, so stay tuned.

Maricop-ing with loss

Conspiracy dead-enders are whimpering toward next Monday’s election certification deadline in Arizona, after most election-denying GOP candidates lost last month. Maricopa County officials issued a report this week stating that election-day glitches didn’t rob any voters of access to the ballot box. One county supervisor had some choice words for losing GOP governor candidate Kari Lake, who’s keeping Trumpist bullshit alive by refusing to concede.

As sad as the scene is, the religious zeal of Arizona’s authoritarians should convince everyone that election conspiracies aren’t going away. One Trumpist warrior let Maricopa officials know their treachery was punishable by death.

Meanwhile, Secretary of State and governor-elect Katie Hobbs sued GOP officials in conservative Cochise County, where they’ve refused to certify election results. Late yesterday a judge ordered the officials to stop messing around and do their canvass.

Cochise Republicans tried to hire the often shoeless attorney who helped the Cyber Ninjas with their GOP review of 2020 results. He turned them down.

Luzerne, my religion

Lest you think Arizona is the only place where Trumpist election denialism is alive and well: Officials in Pennsylvania’s Luzerne County refused to certify their results, only relenting under threat of a lawsuit this week. Both Republicans on Luzerne’s elections board voted against certifying because paper shortages slowed down voting at some polling places.

And Luzerne is just one county in election deniers’ statewide effort to flood the courts with “nonsense” recount requests. Supporters of GOP governor candidate Doug Mastriano, who lost by nearly 15 points, have filed hundreds of actions in dozens of counties in an attempt to exploit arcane laws and force recounts. They have no chance of actually altering the results. Instead they clog courts and spread more doubt about an election that wasn’t close, which is obviously the point.

“We are winning… How many of you have kids that don’t talk to you because they went off the reservation radically left? I know there’s a few of you.”

— Colorado-based election conspiracist Joe Oltmann, to a small election protest crowd in Maricopa County, Ariz.

Rocky Mountain Lie — More trouble for Tina Peters. Another Mesa County defendant has pleaded guilty and agreed to testify against the Colorado conspiracist in her upcoming trial for multiple felony counts of election fraud, impersonation, and tampering.

Pirates of penance — Two infamous right-wing clowns got busted in a robo-call scheme to discourage Black people from voting in Cleveland. They pleaded guilty, and now a judge has sentenced them to 500 hours registering low-income voters in D.C. Jacob Wohl and Jack Burkman are notorious far-right doofuses, known for schemes like ginning up a fake sexual harassment scandal involving Robert Mueller. The 500-hour sentence has some poetry to it, but why should fraudsters who tried to disenfranchise voters in Ohio not do their reparations in Ohio?

Can’t bust it — You’ll be shocked to learn that state-level election crimes units set up by Republicans to sleuth widespread voter fraud have found… almost no voter fraud.