The last seditious conspiracy cases brought in connection with the Jan. 6 attack on the U.S. Capitol are coming to a close, with members of the right-wing extremist Proud Boys facing sentencings this week and last.
But now, Justice Department prosecutors are preparing for another high-profile yet distinctly different conspiracy case linked to the riot that has resulted in charges for more than 1,100 participants: the trial of former President Trump.
Just days before several Proud Boys were given among the harshest sentences yet for plotting to obstruct the certification of the 2020 presidential election results, a March trial date was set for Trump’s case in Washington’s federal court, where he is charged with conspiring to overturn the election — efforts that culminated in the Capitol attack.
At the core of the different conspiracies is the same objective, said Mary McCord, a former federal prosecutor and Georgetown Law professor.
“The cases involving seditious conspiracy and the case in which Mr. Trump is charged federally do all involve an effort to prevent the peaceful transition of presidential power — to overrule or override the will of the voters,” she said.
But the conspiracies alleged are not the same — and the cases prosecutors present to a D.C. jury won’t be the same, either, McCord added.
“Mr. Trump is a different defendant than an Enrique Tarrio or a Stewart Rhodes,” she said of the extremist group leaders.
After descending on the Capitol in January 2021, members of the Proud Boys and right-wing militia group Oath Keepers were charged with entering into seditious conspiracies against the U.S. government, bent on stopping the certification of the 2020 election results by force.
Trump faces four charges in special counsel Jack Smith’s D.C. case, among them three conspiracy counts: conspiracy to obstruct an official proceeding, conspiracy against rights and conspiracy to defraud the United States. The case hinges on Trump’s false claims of election fraud, alleging he pursued “unlawful means” of discounting the true results of the presidential race to stay in power. He has pleaded not guilty to those charges.
The cases show a cause-and-effect relationship, where Trump’s alleged behavior motivated members of the extremist groups to engage in their disparate conspiracies, said Stan Twardy, a former federal prosecutor and practicing lawyer.
“[Trump] lit the match, and the Oath Keepers [and Proud Boys] were the gasoline that exploded here,” he said, pointing to the nature of their indictments.
But the ways in which prosecutors say the extremist groups and the former president executed their goals are “quite different,” McCord said — a distinction that will cause prosecutors and defense attorneys to take a different approach to Trump’s case than the Jan. 6 cases preceding it.
Violent speech and behavior were the foundation of the Justice Department’s cases against members of the extremist groups.
Ahead of the Capitol attack, members of the Oath Keepers issued calls for action over what they perceived to be a stolen election and predicted a “civil war,” with founder Stewart Rhodes saying the “final defense is us and our rifles.” On Jan. 6, they traveled up the Capitol steps in military stack formation and into the building and stored a cache of weapons across the Potomac in case violence broke out.
The Proud Boys similarly called for “war” and “revolution” ahead of the riot, creating a separate chapter of “real men” called the Ministry of Self Defense to be on the ground in D.C. that day. They dismantled barricades, breached the Capitol building and assaulted law enforcement on Jan. 6, and when the vote count was halted, former National Chairman Enrique Tarrio wrote to the chat: “Make no mistake…we did this.”
“You don’t have video of Mr. Trump attacking the Capitol or scaling the walls or breaking through windows or spraying pepper spray at police officers or beating police officers. The videos are so compelling in the cases of the rioters they almost prove the cases on their own,” McCord said. “And so, [Trump’s case] is a very different case to put on for the prosecutors.”
Trump’s case instead will hinge on communications — his own words and others’ — showing an agreement to commit a crime. Prosecutors will likely present a mix of Trump’s public statements and private ones to make their case, McCord said.
But to prove Trump knowingly joined a conspiracy to overturn the 2020 election, the government will have to prove intent — in this case, that he knew he lost the 2020 election and chose to attempt subverting its results anyways. It’s a point that Trump’s legal team will likely lean heavily on when defending the former president at trial, McCord said.
“Mr. Trump maintains to this day that there was fraud in the election,” she said. “I think he’s tried to make the public believe that if he honestly and truly believed the election was stolen, that essentially, he couldn’t be guilty of anything because he had a right to try to attack the results of the election.”
Smith’s indictment of Trump stays away from accusations of sedition, which would be “very difficult” to prove, Twardy said. Instead, it focuses on the facts of his alleged plot to stay in power.
“It’s the ‘Wizard of Oz,’ you know — what is going on behind the curtain there?” Twardy said. “That’s what Smith is charging Trump with.”
That’s not to say the violence at the Capitol on Jan. 6 won’t play any role in the case. The riot is mentioned in the indictment as a means by which Trump allegedly sought to “impair, obstruct and defeat the federal government function through dishonesty, fraud and deceit.”
More than anything, the extremist groups’ prosecutions could help inform the Justice Department on what is persuasive to a D.C. jury, Twardy said.
“What [prosecutors] would have learned from this is what resonated with the jury,” he said. “What were the things that Trump is being charged with that … the jurors saw as really being the match that led to the fire.”
Barbara McQuade, a former federal prosecutor and law professor at the University of Michigan, said portrayals of Jan. 6 as an act of patriotism is one example of a view that D.C. jurors have “clearly rejected.”
“Jack Smith can be confident that a reasonable jury can be selected that sees the events of that day for what they were — a profound display of disloyalty to the United States,” she said.
Tarrio’s seditious conspiracy conviction also tells prosecutors that juries understand a person can be guilty of conspiracy without being present at the scene of the crime, McQuade added. Tarrio was in Baltimore on Jan. 6 after being arrested on separate charges and banished from D.C. two days earlier.
Still, no two juries are exactly alike, she warned. Just one outlier can hang the whole case.
“It’s up to the government to prove beyond a reasonable doubt that the crime was committed,” Twardy said.
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