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Judge upholds seditious conspiracy charge in Oath Keepers case

A judge this week rejected arguments from nine militia members who said the DOJ's indictment was defective, and also declined to move their trial out of D.C.

WASHINGTON — A federal judge Tuesday upheld the government’s use of seditious conspiracy charges against nine Oath Keepers indicted in one of the Justice Department’s marquee Capitol riot cases.

In an April motion, attorney David Fischer – on behalf of accused Virginia Oath Keeper Thomas Caldwell – argued the seditious conspiracy statute requires a conspiracy “specifically aimed at a person authorized… to execute the law opposed by the defendants.” Fischer also argued members of Congress and the vice president were not “executing” a law during the joint session on Jan. 6. The argument was similar to one made by Fischer and adopted by other defense attorneys last year in motions seeking to have obstruction of an official proceeding charges dismissed. No judge on the D.C. District Court agreed the joint session of Congress was not an “official proceeding” under the law – although one judge did later dismiss the charges for other reasons. The DOJ is now appealing that decision.

On Tuesday, U.S. District Judge Amit P. Mehta again denied Fischer’s motion to dismiss. In his order, Mehta said the Justice Department’s indictment sufficiently stated the offense against the Oath Keepers – specifically, that they conspired to resist the government’s execution of laws governing the transfer of power.

The modern seditious conspiracy statute, Mehta noted, traces its roots to post-Civil War laws designed to punish actions taken against the government that fell short of treason. In particular, he said, the statute descends from the Enforcement Act of 1871, also known as the Ku Klux Klan Act, which was enacted to prevent Reconstruction-era attempts, often violent, to suppress Black voting rights.

At the time, Mehta wrote, Congress understood how to distinguish crimes against the government as an entity from those against a federal official. In the Ku Klux Klan act, Congress specifically outlawed conspiracies to overthrow, put down and destroy by force “the government of the United States” or to oppose by force “the authority of the United States.” A later section of the law, Mehta noted, dealt with crimes against individuals.

“A seditious conspiracy charge therefore need not allege a conspiracy aimed a particular federal official authorized to execute the law,” Mehta wrote.

Even if it did, Mehta added, the defendants’ motion would still fail because the vice president and members of Congress were executing the laws governing the transfer of power on Jan. 6, among them the 12th and 20th Amendments to the Constitution.

In his order Tuesday, Mehta also rejected a motion to move the trial out of D.C. to the Eastern District of Virginia, where Caldwell lives.

Mehta is the first judge on the D.C. District Court to rule on the DOJ’s application of the infrequently used seditious conspiracy statute in Capitol riot cases. To date, the only other case to feature the charge is the DOJ’s prosecution of five alleged Proud Boys leaders accused of having a plan to occupy “critical” buildings in D.C. on Jan. 6. Attorneys in that case have not yet filed motions to dismiss the seditious conspiracy indictment, which was returned by a federal grand jury earlier this month.

Because of the number of Oath Keepers defendants, Mehta has ordered their cases tried in two groups. The first is scheduled to go to trial on Sept. 26. The second will begin trial on Nov. 29. The Proud Boys were originally scheduled to begin trial on Aug. 8, but that date was vacated last week over concerns about what affect the ongoing January 6th Committee hearings could have. Attorneys for the DOJ and defendants in that case have proposed a new trial date in early December.

We're tracking all of the arrests, charges and investigations into the January 6 assault on the Capitol. Sign up for our Capitol Breach Newsletter here so that you never miss an update.

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