The most interesting aspect of the recent indictments of 11 people accused of involvement in the Jan. 6 attack on charges of seditious conspiracy isn’t who has been charged — but who might be charged next. The Justice Department unveiled a 48-page indictment Thursday accusing the 11 defendants of conspiring to oppose by force the government’s transition of presidential power, a jaw-dropping allegation under most circumstances.
This indictment signals a turn to more serious charges.
But for all of us who watched the violent attack on the U.S. Capitol on Jan. 6, 2021, it seems like a fitting response. While this offense is rarely charged, the Justice Department didn’t flinch from using it in this case, which Attorney General Merrick Garland has called an “assault on democracy.” And it’s likely that prosecutors aren’t done yet.
The defendants are alleged to be members of the Oath Keepers, a group described in the indictment as “a large but loosely organized collection of individuals, some of whom are associated with militias.” The indictment says the Oath Keepers “explicitly focus on recruiting current and former military, law enforcement and first-responder personnel.” The leader of the group, Stewart Rhodes, is a former Army paratrooper and a Yale Law School graduate.
The indictment alleges that the defendants conspired to thwart the election results before, during and after Jan. 6 by recruiting, training and organizing teams to oppose the transfer of power. They are accused of amassing an arsenal of weapons as part of their plot. On Jan. 6, members of the group arranged themselves in formations and entered the Capitol, the indictment says. Others served as an armed “Quick Response Team” off-site to provide reinforcements later after the initial teams had breached the Capitol, it says.
More than 700 people have been charged in connection with Jan. 6. Most of those defendants have been charged with less serious offenses, such as trespassing, damaging property and assaulting police officers. But this indictment signals a turn to more serious charges. As Garland said in his Jan. 5 speech about the investigation: “Overt actors and the evidence they provide can lead us to others who may also have been involved. And that evidence can serve as the foundation for further investigative leads and techniques.”
Working up the chain of organized criminal conduct is part of the standard Justice Department playbook. Lower-level offenders can provide leads to higher-level offenders in two ways. One way is through the investigation of simpler crimes. For example, prosecutors may find ample evidence that a particular subject unlawfully entered the Capitol on Jan. 6. If prosecutors can also demonstrate probable cause that the person used his cellphone as a so-called instrumentality to commit the crime, a search warrant can be obtained for the contents of his physical device. A phone may contain evidence of criminal conduct, and it can also provide links to other offenders. Access to phones is particularly valuable in cases in which, as here, the defendants are alleged to have used encrypted messaging applications, such as Signal, to communicate, making it impossible for investigators to obtain the content of incriminating text messages through the normal route — from the service providers.
Who funded all of that equipment? Perhaps one of the 11 defendants facing up to 20 years in prison for seditious conspiracy will be persuaded to tell.
Another way lower-level offenders can lead to evidence against more serious offenders is through cooperation. Defendants who are charged with crimes and are likely to face conviction can often help themselves by sitting down with prosecutors and providing debriefings of everything they know. Prosecutors refer to this process as “flipping” a defendant from the defense side to the prosecution team. If that information is valuable, prosecutors will ask the court to reduce the cooperator’s sentence. Cooperators can provide verbal testimony, as well as point investigators to documents and other witnesses who can corroborate their stories. Cooperators can even voluntarily share the contents of their cellphones, providing access to encrypted messages that prosecutors may have been unable to obtain in the absence of probable cause that they used the phones as instrumentalities for the crime.
The recent charges indicate that this methodical approach has yielded results. The indictment includes verbatim quotations from encrypted text messages among the Oath Keeper defendants, and they are devastating. The document quotes a text message from Rhodes in November 2020 saying: “We aren’t getting through this without a civil war. Too late for that. Prepare your mind, body, spirit.” In another message, Rhodes is alleged to have written, “We must now do what the people of Serbia did when [Slobodan] Milosovic stole their election — Refuse to accept it, and march en masse to the nation’s Capitol.” He sent a link to a “step-by-step” video from one of the organizers of the Serbian operation in 2000 explaining how demonstrators forced Milosevic to resign: “We stormed the Parliament. And burned down fake state Television! WE WON!” The content of other text messages appears throughout the indictment. No evidence is more powerful than the incriminating words of a defendant himself. In light of this evidence, the case against the Oath Keeper defendants looks strong. If the methodical approach has brought us this far, where will it take us next? The indictment raises some questions. For instance, it lists in detail the arsenal the Oath Keepers assembled for this mission, including firearms, ammunition, tactical vests and radio equipment. Who funded all of that equipment? Perhaps one of the 11 defendants who could face up to 20 years in prison for seditious conspiracy will be persuaded to tell. In addition, one of the defendants charged with seditious conspiracy was Roberto Minuta, a New York tattoo artist who is alleged to be a member of the Oath Keepers. Minuta is reported to have provided security in Washington on Jan. 5 to Roger Stone, a confidant of Donald Trump. If Minuta were to decide to cooperate, he could provide information about Stone or others, including digital communications with them. From there, prosecutors could continue to work their way up the chain to identify higher-level planners and organizers, perhaps tying the Jan. 6 attack to other aspects of the “Stop the Steal” scheme. In describing the methodology, Garland promised to hold “all January 6th perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy.” The seditious conspiracy indictment indicates that the Justice Department’s methodical work continues and that it’s not done yet. Garland has promised to “follow the facts wherever they lead”; can’t wait to see who’s next.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
