The indictment itself details the same extremist rhetoric and calls that we have seen from extremist groups on both the left and right in past years. It is an unsettling part of this age of rage. The defendants adopted pseudo military jargon and beat their chests about the coming civil war. It is important not to dismiss the danger that such groups pose. They come across at points as clowns but this is why clowns can be so scary. They are clowns who openly discussed storing weapons and fostering a civil war. The indictment details evidence that most of these men entered the Capitol and encouraged the rioting. Most of the charges are similar to those in other cases in that respect and seem well-based.
It is really the first charge that has drawn the most attention and is likely to draw the most litigation. However, as discussed above, keep in mind that a conspiracy requires only two people to conspire to hinder the executive of any law.
Nevertheless, the Justice Department works hard to reinforce the view of this group as launching a military attack, using their own military jargon. It divides the group into “stacks” that “marched” on the Capitol.
Thus, Stack 2 (composed of just three people) is described as not walking but marching around the crowded grounds: “[Stack Two] breached the Capitol grounds, marching from the west side to the east side of the Capitol building and up the east stairs.”
The defense is likely to question these characterizations in pre-trial motions. Each “stack” was composed of a handful of people. Stack 1 was composed of Kelly Meggs, Kenneth Harrelson, Jessica Watkins, and Jospeh Hasckett, and David Moerschel. Stack 2 was composed of just Joshua James and Robero Minuta. Then there is the ominous sounding “Quick Reaction Force,” which the indictment said was composed of only Thomas Caldwell and Edward Vallejo.
The indictment is strong on detailing the alleged violent rhetoric and machinations of the defendants. It shows men who speak of civil war and actively acquire weapons in the anticipation that they might be used.
However, as a criminal defense attorney, there are some gaps and disconnects that I expect could cause difficulties at trial on the sedition conspiracy charge. (The rest of the charges will be more difficult to contest on things like obstructing an official proceeding).
These are eleven people who were not armed with guns and some apparently never entered the Capitol. While the Justice Department discussed plans for river landings and arsenals of weapons and forces held in reserve, the individuals in Stack 2 were equipped with:
“battle apparel and gear, including hard-knuckle tactical gloves, tactical vests, ballistic goggles, radios, chemical sprays, a paracord attachment, fatigues, goggles, scissors, a large stick, and one of the Stack Two member’s 82-pound German Shepherd named ‘Warrior.’”
That is undistinguishable (and in some cases less lethal) than material seized from Antifa, Proud Boys, and other rioters in prior summer. Despite buying and storing weapons, they did not bring them to the Hill, did not use them, and left the Hill with many others. Only one, Joshua James, is charged with the broad offense of “assaulting, resisting, or impeding certain officers.” (Count 8). The rest are charged with the common crimes of trespass, obstruction, and unlawful entry.
The indictment details discussions of a civil war after the riot. On January 12, 2021, James messages “after this, … if nothing happens, its war … Civil War 2.0.” There was no apparent follow through after January 6th with an actual attack or rebellion against the government.
The indictment also does not allege the broader conspiracy often raised by politicians and pundits. The defendants themselves appeared to acknowledge that they were acting without coordination with the Administration or President Trump. Rhodes messages “All I see 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.”
There may be more charges coming given the references to unnamed “co-conspirators.” For example, on page 18, Watkins is quoted in discussions with someone who is only referenced as a “co-conspirator.” It is not clear if that person is a cooperating witness or a soon-to-be-charged defendant.
There are other glaring issues for defense counsel, including the possibility that a couple of the defendants who did not even participate in the actual riot at the Capitol building. That does not mean that they cannot be guilty of a conspiracy but it contradicts earlier published accounts.
The government, for example, previously held Caldwell as a key organizer of the attack and claimed that he entered the Capitol with this co-conspirators. The indictment, however, omits that allegation and now lists Caldwell with the two-man “Quick Reaction Force.” A federal judge ultimately refused to continue to holdCaldwell over the objections of the Justice Department.