The stakes have risen for high-profile congressional hearings beginning later this week with the filing of seditious conspiracy charges against leaders of one of the most prominent groups involved in the January 6, 2021, assault on the U.S. Capitol.
The timing of the indictment is coincidental to the hearings, which will kick off with a prime time nationally televised session Thursday, but the seriousness of the charges drives home the importance of the investigation and is likely to draw more viewers to the broadcast.
A federal grand jury on Monday returned the superseding indictment alleging that former Proud Boys national chairman Henry “Enrique” Tarrio and members Ethan Nordean, Joseph Biggs, Zachary Rehl and Dominic Pezzola conspired to use force to prevent members of Congress from certifying the results of the election in which President Joe Biden defeated former President Donald Trump.
The indictment includes the text of various messages and voice memoranda that members of the Proud Boys exchanged which suggest there was an extensive planning process in advance of the attack.
In the indictment, the Justice Department alleges that an associate of Tarrio’s provided him with a nine-page document called “1776 Returns” that outlined a plan for occupying several federal buildings in Washington. The associate wrote to Tarrio, “The revolution is [sic] important than anything,” to which Tarrio replied, “That’s what every waking moment consists of … I’m not playing games.”
Hearings planned
The group’s actions are also expected to figure at some point during half a dozen public hearings being planned to publicize the findings of the House Select Committee to Investigate the January 6th Attack on the United States Capitol.
The committee, made up of seven Democrats and two Republicans, has conducted more than 1,000 interviews and has obtained more than 100,000 documents in the course of its investigation. However, some of the most high-profile figures from whom it has sought testimony, including House Minority Leader Kevin McCarthy and former Trump Chief of Staff Mark Meadows, have defied subpoenas.
Members of the committee have indicated in public statements and in court filings that the hearings will outline ways in which investigators believe members of the Trump administration and others close to the former president planned to overturn the results of the election. They have also indicated that they will try to connect the former president’s false claims that the election was stolen from him to the violent protests on the day of the attack.
The hearings, some of which are to be broadcast in the evening, are being designed for maximum public impact, mixing live witness testimony, videotaped depositions and a steady drumbeat of previously unrevealed facts about the run-up to the assault.
Up to 20 years in prison
The seditious conspiracy charge leveled against Tarrio and his associates carries a penalty of up to 20 years in prison.
According to statute, it requires the government to prove that two or more people conspired “to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof.”
In this case, the government is arguing that the Proud Boys named in the indictment conspired to use force to prevent the counting of electoral votes by then-Vice President Mike Pence and members of Congress on January 6. That count, required by law under the Electoral Count Act of 1887, is the final step in confirming the winner of a presidential election.
Monday’s indictment is the second time that a group of individuals involved in the storming of the Capitol has been charged with seditious conspiracy. Earlier this year 10 members of the right-wing Oath Keepers group, including its leader, Stewart Rhodes, faced the same allegations.
Rare charge
The spate of seditious conspiracy charges arising from the attack on the Capitol masks the fact that it is a crime only rarely alleged in the United States.
“The crime itself is pretty rare, because it is essentially an agreement to obstruct the government in a significant way, and that just doesn’t happen that much,” Carlton F. W. Lawson, a Martin Luther King Jr. Professor of Law at the University of California-Davis School of Law, told VOA.
However, he said, the government appears to have a strong case.
“At this point, these are just allegations,” Larson said. “But assuming that they are true, I think it states a pretty clear case for a seditious conspiracy charge.”
He added, “This is a pretty cautious Justice Department, so the fact that they thought that this was appropriate does tell us they are taking January 6 very seriously.”
Not present at Capitol
Neither the Proud Boys’ Tarrio, charged on Monday, nor the Oath Keepers’ Rhodes actually entered the Capitol on January 6.
Tarrio had been arrested in Washington, D.C., several days prior to the attack, on charges related to an earlier Proud Boys event in the city. A judge directed him not to return to the city until those allegations were resolved, and he appears to have complied with that order.
Rhodes was in Washington at the time of the attack but did not enter the Capitol.
The fact that both are still facing charges highlights the fact that to be successful, a seditious conspiracy charge does not require that the act of sedition was successful, or that it was even carried out at all.
“The actual offense really is the conspiracy, the prior agreement to do these things,” said UC-Davis’ Larson.
An attorney representing Tarrio told the Wall Street Journal that his client “looks forward to being vindicated.” Rhodes has pleaded not guilty. Both men, along with others charged in their cases, remain in federal custody.