ARGUMENT: SEDITION & TERRORISMShould Nine Oath Keepers Receive Terror-Enhanced Sentences?

More than 1,000 people have now been charged with federal crimesstemming from the Capitol insurrection. Of them, about 665 have been convicted, and roughly 485 sentenced. Among the 665 rioters who were convicted are nine members of the extremist group Oath Keepers. Roger Parloff writesin Lawfare that

This week, a federal judge will begin handing down sentences for nine members of the Oath Keepers paramilitary group for their roles in the Jan. 6 insurrection, including six convicted of seditious conspiracy. The government seeks 25 years imprisonment for the group’s founder and leader that day, Elmer Stewart Rhodes III, and sentences ranging from 10 to 21 years for the other eight. Six of those sentences, if imposed, would become the longest to date for any Capitol Siege rioter.

The sentences, which will be imposed by U.S. District Judge Amit Mehta of Washington, D.C., raise difficult questions with no close precedents. Although at least 15 people have been sentenced for seditious conspiracy since theU.S. Sentencing Guidelines took effect in 1987, all previous cases involved people prosecuted for conduct “tantamount to waging war against the United States,” a term of art in the sentencing guidelines that the government concedes is not met here. Indeed, all other recent seditious conspiracy cases appear to have been brought at least in part under a different clause of the seditious conspiracy statute,18 U.S.C.§2384—the clause that punishes conspiracies to “levy war” against the U.S. The Oath Keepers cases were brought under two different clauses that forbid conspiracies “to oppose by force the authority” of the U.S. and conspiracies “by force to prevent, hinder, or delay the execution of any law of the United States.”

As we’ll see, these distinctions are important, both as a technical matter—in terms of determining the “baseline offense level” under the U.S. Sentencing Guidelines—but also in terms of what seems “just” at a gut level.

Parloff’s view is that, in some instances, the recommendations in the Oath Keepers cases seem excessive. “Three of the nine defendants being sentenced were acquittedof seditious conspiracy. One of those defendants was actually acquitted of all three conspiracycounts charged. Yet, for sentencing purposes, the government treats those three the same as if they’d been convicted of all counts.”

Parloff notes, however, that while there are mitigating circumstances which may apply to eight of the convicted Oath Keeprs, none of these circumstances applies to the group’s leader, Elmer Stewart Rhodes III:

For Rhodes, who led at least 26 charged individuals to the Jan. 6 insurrection, inspiring them for months with talk of “bloody revolution” and “civil war,” that outcome seems unlikely. Rather, a terrorism enhancement for him seems appropriate and, indeed, unavoidable.