DOJ raises stakes with rarely used sedition charges for Oath Keepers | TheHill

“While this evidence could certainly lead a rational factfinder to conclude that ‘something fishy’ was going on, it does not prove beyond a reasonable doubt that Defendants reached a concrete agreement to forcibly oppose the United States Government.”Experts told The Hill the challenge of winning seditious conspiracy cases is more about perception than meeting the legal requirements of the statute.Barbara McQuade, a former U.S. attorney in Michigan who prosecuted the Hutaree case, said in recent years it’s been difficult to convince jurors that militia groups actually pose a threat, even though the statute only requires showing an intent to carry out an attack regardless of whether such groups stood a realistic chance of successfully overthrowing the government.McQuade said an obstacle in the case was that the group was viewed as “a bunch of goofy knuckleheads who like to blow stuff up in the woods and they could never possibly attack the United States.”But the attack on the Capitol and the increased public attention on domestic extremists in recent years could make it easier for prosecutors to convince jurors of the potential threat posed by militia groups.“The technical elements of law are pretty easy to satisfy,” she said. I think it seems less ridiculous when we saw what happened on Jan. 6.”The indictment against Rhodes that was released Thursday indicates that prosecutors are confident that they can show that the defendants were not just using empty rhetoric when they spoke with each other about carrying out violence in order to stop the presidential transition.Mary McCord, who served as the acting head of the DOJ’s National Security Division during the Obama administration and as a federal prosecutor in the U.S. Attorney’s office in D.C. for nearly twenty years, said that the challenge in prosecuting seditious conspiracy cases lies partly in distinguishing between constitutionally-protected anti-government rhetoric and communications that lay out a concerted plot against the government.“If you are actually prosecuting a conspiracy case involving a conspiracy that was thwarted, that never got to go to fruition, you always have to convince the jury and the judge, as a threshold matter, that the planning was concrete enough, that it wasn't just fantasy, that it wasn't just hyperbole, that there really was a plan to engage in whatever the object of the conspiracy was,” McCord said.