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Opinion Distinguished pol of the week: Merrick Garland’s boldest move yet

Attorney General Merrick Garland delivers remarks on Jan. 5 related to the Justice Department's investigation into the Jan. 6 insurrection. (Carolyn Kaster/Bloomberg)
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Attorney General Merrick Garland has faced tough criticism over his perceived timidity. Those concerns were wrong as he made clear this past week.

The Justice Department revealed massive indictments of members of the Oath Keepers, a far-right extremist group, for their participation in the Jan. 6 insurrection. A total of 19 individuals have been charged with “corruptly obstructing an official proceeding,” referring to Congress’s tabulation of electoral votes. Eleven of them also face charges of seditious conspiracy, which can carry a penalty of up to 20 years in prison, as well as other charges, such as preventing an officer from performing his duties and tampering with official documents.

Both the seditious conspiracy and the obstruction charges dramatically ratchet up the investigation. It also poses a serious threat to former president Donald Trump and his top cronies.

The seditious conspiracy charge alleges that Oath Keeper founder and leader Elmer Stewart Rhodes III “conspired with his co-defendants and others to oppose by force the execution of the laws governing the transfer of presidential power by Jan. 20, 2021.” The purpose of the conspiracy, the indictment alleges, was to prevent by force “the lawful transfer of presidential power. ... [I]n an effort to prevent, hinder and delay the certification of the electoral college vote.”

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The complaint enumerates a long list of actions that bolster the conspiracy charges, including encrypted communications, gathering and transporting weapons, recruiting and training teams, and using social media to communicate with co-conspirators. Its description of the group’s accumulated arsenal and paramilitary attack removes any doubt this was some nonviolent protest.

Most of the Oath Keepers have pleaded not guilty to the obstruction charges. Two have pleaded guilty and are cooperating with investigators. Rhodes has repeatedly denied wrongdoing.

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The seriousness of the crimes alleged and the substantial criminal penalties involved would be news enough. But there are four other reasons they matter, especially for Trump, his cronies and any members of Congress who may have been implicated in the plot to prevent Joe Biden from assuming the presidency.

First, and most important, this is the first time the Justice Department has identified the assault on the Capitol as sedition. Trump apologists had long argued that this was not a “coup” or effort to upset the government. The indictment argues otherwise. Seeking to disrupt the counting of the electoral votes is, if the indictment holds, sedition. And conspiracy to commit that crime is a serious offense entailing long prison terms. By invoking that charge against coup plotters, Garland makes clear he is following up the chain and will look at actions preceding Jan. 6.

Second, Section 3 of the 14th Amendment disqualifies elected officials from holding federal office if they “have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof.” Federal law also states that “whoever incites, sets on foot, assists, or engages in any rebellion or insurrection against the authority of the United States or the laws thereof, or gives aid or comfort thereto, shall be fined under this title or imprisoned not more than ten years, or both; and shall be incapable of holding any office under the United States.”

The facts alleged in the seditious conspiracy charge — the attempt to prevent the lawful transfer of power — certainly relate to Section 3. While the mechanism for enforcing this is uncertain, the Justice Department has moved into territory in which Trump and congressional allies could be disqualified from office. One can imagine a flood of lawsuits and proposals for Congress to disqualify those shown to be part of the conspiracy.

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Third, the indictment plainly lays out a legal avenue for indicting Trump and his cronies should the facts warrant. Trump’s involvement in the plot to storm the Capitol — including his incitement, his failure to halt it once underway and any attempts by aides to coordinate with the Oath Keepers — could implicate him in the seditious conspiracy. Prosecutors would need to show that he made an agreement with at least some conspirators, although it would not be necessary to prove he conspired directly with the Oath Keepers.

Fourth, even more threatening to Trump is the indictment’s charge of conspiracy to obstruct an official proceeding, which does not require prosecutors to prove use of force or violence. The law applies to anyone whoever “corruptly . . . otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” The interference with the counting of the electoral college votes, in the eyes of the Justice Department, amounts to corruptly obstructing an official proceeding. This might include nonviolent acts such as propounding the “big lie,” pressuring then-Vice President Mike Pence to reject electoral votes, cajoling the Justice Department to discredit the election and implicitly threatening Brad Raffensperger, Georgia’s secretary of state, if he did not “find” enough votes to hand the state to Trump.

The indictment is an aggressive and bold step forward that, based on already available evidence, might snare Trump. Of course, a prosecutor would have to prove all elements beyond a reasonable doubt. With such serious charges pending against the Oath Keepers, the chance to “flip” them and reveal higher-ups involved in the plot increases substantially.

For staying true to his word to follow the facts and elevating the seriousness of the charges, we can say, well done Mr. Attorney General.