Prosecutors Shift Focus to Possible Seditious Conspiracy in Capitol Insurrection Probe

Easier Cases
But during the first few weeks of the probe, Sherwin’s investigators chiefly focused on what some called the “low-hanging fruit” cases — rioters such as the man carrying a “Camp Auschwitz” sign seen in viral social media videos rampaging through the Capitol. The effort proved largely successful, with nearly 100 arrests made by the time of Biden’s inauguration on January 20, according to Sherwin.

David Gomez, a retired FBI agent and counterterrorism executive with the bureau, said what makes the investigation so complex is the fact that the rioters came from all across the country.

“So you have offices that normally wouldn’t be involved in these types of investigations having to rally their agents to look into and find participants and potential suspects in the assault on the Capitol,” Gomez said.

With all but a handful of the most notorious rioters arrested, investigators have shifted their focus in recent weeks to the Oath Keepers and other extremists who allegedly plotted the attack for a variety of reasons.

Now, prosecutors are “pivoting,” looking for rioters who conspired to overthrow the government, said Sherine Ebadi, a former FBI special agent who is now an associate managing director at Kroll, an international investigative agency.

“That’s sort of the heart and soul of this investigation,” said Ebadi, who served as the lead case agent during the special counsel investigation of former Trump campaign manager Paul Manafort.

While investigating rioters who breached the Capitol and destroyed property is important, Ebadi said, “what they’re really concerned about is the conspiracy to overthrow the government or to commit acts of sedition.”

But whether prosecutors can prove seditious conspiracy remains an open question. The burden of proof is steep. To prove the charge, prosecutors must demonstrate that a group of individuals conspired with one another to violently overthrow the government.

International Terrorists, Not Domestic
In recent decades, the Justice Department has successfully prosecuted several international terrorists on seditious conspiracy charges. But it has had less success in using the seditious conspiracy statute against domestic extremists.

So far, prosecutors have built at least two major conspiracy cases related to the Capitol attack.

The first involves a group of 10 members of the Oath Keepers, described by the Anti-Defamation League as “a large but loosely organized collection of right-wing anti-government extremists who are part of the militia movement.”

The group, including five military veterans and one former law enforcement officer, is accused of coordinating and planning the attack in encrypted chats weeks in advance of January 6. Prosecutors say seven of the 10 were part of a military-style stack formation that dressed in paramilitary gear and forced their way into the Capitol. They face multiple criminal charges, including conspiracy, obstruction of an official proceeding and destruction of government property.

The second conspiracy case involves four leaders of the Proud Boys, a self-described club of “Western chauvinists” known for their street brawls with members of the anti-fascist movement known as antifa.

Three of the quartet, including Ethan Nordean, president of the Proud Boys’ Washington state chapter, allegedly stormed the Capitol before celebrating the attack on social media and encrypted messages. They face six charges, including conspiracy, obstruction of an official proceeding, obstruction of law enforcement, and destruction of government property.

In recent days, prosecutors have disclosed fresh evidence of what they see as coordination among the Oath Keepers, the Proud Boys and the Three Percenters, another militia group.

“I Organized an Alliance”
In a Wednesday court filing, prosecutors alleged that as early as December 19, Kelly Meggs, the Oath Keepers’ “team leader” at the Capitol, discussed his coordination with other groups planning to be in Washington on January 6.

“This week I organized an alliance between Oath Keepers, Florida 3%ers, and Proud Boys,” Meggs wrote in a Facebook message. “We have decided to work together to shut this s—t down.”

On December 26, Meggs, claiming that Trump planned to invoke the Insurrection Act, told another person “to wait for the 6th when we are all in DC to insurrection,” according to the filing. And three days before the Capitol siege, Meggs emphasized in a message to another person that “the January 6 event will not be RALLY.”

Jordan Strauss, a former federal prosecutor and Justice Department official who now is a managing director at Kroll, said the recent court filings suggest the makings of a seditious conspiracy case against some defendants.

“You’ve got communication, you’ve got coordination, and then you have it followed by what appears to be a coordinated act of violence designed to stop the Congress from doing its constitutional duty,” Strauss said.

In recent court filings, prosecutors have also offered fresh evidence of Oath Keepers leader Stewart Rhodes’ engagement with members of the stack that breached the Capitol.

At about 1:38 p.m. on January 6, as his followers were preparing to storm the Capitol, Rhodes, referred to as “Person One” in court documents, wrote on Signal, an encrypted app: “All I see is Trump doing is complaining. I see no intent by him to do anything. So the patriots are taking it into their own hands. They’ve had enough.”

Strauss said the comments show “the purpose of this conspiracy … is actually to obstruct or overthrow the constitutional order.”

Ultimately, however, prosecutors may conclude that they simply don’t have enough evidence to prove a seditious conspiracy case, said Michael Jensen, a senior researcher at the National Consortium for the Study of Terrorism and Responses to Terrorism at the University of Maryland.

“The decision could be made by prosecutors that … they’ve already got enough evidence to convict these individuals of assault and various crimes related to entering the building and that may have to be good enough,” Jensen said. “But it’s really hard to know at this point.”

Masood Farivar covers the Justice Department and the FBI for Voice of America. This article  is published courtesy of the Voice of America (VOA).