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Memorial Day and seditious conspiracy against the United States
Memorial Day is an occasion to honor those who have given their lives so that our democracy can endure. It’s also an occasion to reaffirm our commitment to holding accountable those who have threatened its endurance.
Last Thursday, U.S. District Judge Amit Mehta sentenced Stewart Rhodes, founder of the Oath Keepers, to 18 years in prison for seditious conspiracy against the United States. Rhodes is the first January 6 defendant sentenced under that charge, and he received the longest prison term yet in the Justice Department’s probe into the Capitol attack.
“Seditious conspiracy” is defined under law (18 U.S. Code Section 2384) as “conspir[ing] to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.”
Federal prosecutors wrote in a sentencing memorandum that Rhodes “proposed that he and other Oath Keepers members and affiliates forcibly oppose the lawful transfer” of presidential power from Donald Trump to Joe Biden. They also said that Rhodes “pushed the idea among Oath Keepers members and others that with a large enough mob, they could intimidate Congress and its Members and impose the conspirators’ will rather than the American people’s: to stop the certification of the next President of the United States.”
Exactly the same could be said of Donald Trump. Trump also urged his followers to oppose the transfer of presidential power from him to Biden. He also pushed the idea that they could intimidate Congress to stop the certification of the next president. Worse, he took direct action to stop the peaceful transition of power.
I’m sure you remember the following. Together, they show that Trump’s actions furthered his seditious conspiracy.
On December 19, 2020, Trump sent a tweet urging his followers to come to Washington on January 6, and it “will be wild.” Far-right militia such as the Oath Keepers understood that tweet as a call to violence. (Trump confidantes Michael Flynn and Roger Stone had direct relationships with violent right-wing groups.)
Trump learned that the people coming to Washington at his urging planned to attack the Capitol and that multiple users online were targeting members of Congress. The Secret Service had this information at least 10 days before the attack.
During his speech at the Ellipse on January 6, Trump told his supporters, “We won this election, and we won it by a landslide….We will stop the steal….We will never give up. We will never concede. It doesn’t happen….You don’t concede when there’s theft involved. Our country has had enough. We will not take it anymore. You will have an illegitimate president, and we can’t let that happen….If you don’t fight like hell you’re not going to have a country anymore….We are going to the Capitol.”
He knew the crowd he urged to march to the Capitol was armed.
Trump watched the riots unfold on television for more than three hours without lifting a finger to protect the vice president, his family, or members of Congress, despite pleas from Trump family members, White House advisors, and Republican congressional leaders. He only called senators to urge them to delay the electoral vote.
Despite the fact that Trump was repeatedly implored — by his own White House counsel, other White House staff, and members of his family — to condemn the violence, ask rioters to stop and leave the Capitol, and go home, he did not. When House Minority Leader Kevin McCarthy urged Trump to take action, Trump responded: “Well, Kevin, I guess they’re just more upset about the election than you are.”
Instead, he chose to provoke the rioters. His first tweet was: “Mike Pence didn't have the courage to do what should have been done to protect our Country.” In view of White House staffers, this “poured fuel on the fire.”
Finally, at 6:01 pm, he tweeted: “These are the things that happen when a victory is stripped away from great patriots. Remember the day forever. Go home with love.”
He still contends that the election was stolen from him, without any evidence. And as recently as his CNN “town hall” on May 10, he expressed sympathy for people with January 6-related convictions and said he would pardon them if he becomes president again.
In addition, the evidence gathered by the January 6 committee revealed that:
Trump knew his allegations of fraud in Georgia were false, but he nonetheless sought to pressure the Georgia secretary of state, Brad Raffensperger, into giving him the votes he needed, saying “I want to find 11,780 votes.” When Raffensperger demurred, Trump threatened that Raffensperger would be prosecuted.
Trump also tried to pressure election officials in Arizona and Michigan, knowing he lost those states.
He sought to replace real Biden electors with fake Trump electors, knowing this was illegal.
He pressured the Justice Department to change the results of the election. He sought to name a Justice Department minion as the new attorney general who would send letters to Trump-friendly state legislatures alleging widespread fraud in their states, urging these friendly state legislatures to exploit the “failed choice” loophole in antiquated 19th-century laws — and substitute their own Trump presidential electors for the Biden electors that had been chosen by the voters on Election Day. Trump’s own top Justice Department officials killed this scheme by threatening to resign en masse.
My friends, Donald Trump is as guilty as Stewart Rhodes of seditious conspiracy against the United States — if not more. On the basis of evidence already public, a jury would find Trump guilty. Yet if he becomes president before such a finding is made, the Justice Department under his new attorney general will almost certainly drop its case against him.
On this Memorial Day, let us honor those who have died so that American democracy may live. Let us also hold the former president accountable, so that American democracy does not die. Please write Attorney General Merrick Garland* and remind him and Special Counsel Jack Smith of their constitutional duty.
*U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Department Comment Line: 202-353-1555
Department of Justice Main Switchboard: 202-514-2000