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The Capitol Attack Was the Most Documented Crime in History. Will That Ensure Justice?

13 minute read

As throngs of pro-Trump supporters rammed their way into the U.S. Capitol on the afternoon of Jan. 6, two men sped toward the complex in a pair of golf carts. Roberto Minuta, 36, and Joshua James, 33, were on their way to aid a group of seven men and women who were preparing to climb the Capitol’s east stairs in a tactical formation, according to a federal indictment unsealed Apr. 1.

To pierce the mass of people gathered there, each group member placed a hand on the back of the person ahead of them—a military-style tactic prosecutors called a “stack.” The group, clad in tactical vests, helmets and radios, forcibly entered through the Capitol rotunda doors, where James and Minuta followed 25 minutes later. “It’s going down, guys; it’s literally going down right now Patriots storming the Capitol building,” said Minuta, according to court documents. “F*cking war in the streets right now… word is they got in the building… let’s go.”

For the rest of the afternoon, waves of rioters swarmed police barricades, sprayed chemical agents, smashed windows, and entered the Capitol by brute force before National Guard and federal forces were dispatched. And when the siege began to dissipate, ultimately leaving five people dead and scores wounded, prosecutors say that James, Minuta and others regrouped outside about 100 feet from the building. Affixed to their gear, members of the group had patches emblazoned with yellow block lettering that spelled out: “OATH KEEPERS.”

The attempted insurrection at the U.S. Capitol on Jan. 6 could be the most documented crime in U.S. history. Surveillance and law enforcement body cameras captured more than 15,000 hours of footage. The federal government has snagged some 1,600 electronic devices, each likely teeming with electronic communications. Citizens from across the country have flooded the FBI with more than 270,000 tips, which include videos, photos and social media posts. And the rioters themselves extensively captured their exploits on camera, posting hours of digital evidence of the rampage. Thanks to that torrent of evidence, more than 370 suspects have been arrested on charges related to the insurrection.

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Supporters of President Donald Trump in the US Capitol's Rotunda after breeching police barriers in Washington, DC, on Jan. 6, 2021.Saul Loeb—AFP/Getty Images

Perhaps the most consequential allegations come in the conspiracy case that prosecutors are building against members of the Oath Keepers, an anti-government, self-styled militia. Prosecutors allege the group’s members organized, equipped and trained ahead of time, and coordinated their actions on the day of the breach using hand signals, cell phones, walkie-talkie-like apps and encrypted chat programs like Signal, MeWe and Zello. On Apr. 1, James and Minuta became the eleventh and twelfth people linked to the Oath Keepers to be arrested. The two men face charges on conspiracy, obstruction of an official proceeding, and entering and remaining in a restricted building or grounds. If convicted, each faces a maximum of 20 years in prison.

James’ lawyer, Joni Robin, says he “intends to fight the charges that have been leveled against him” and clear his name as an Army combat veteran, noting that unlike many of the others arrested for being at the Capitol that day, he has not been accused of engaging in acts of violence. The Oath Keepers and Minuta’s lawyer did not comment for this story.

There is a reason that the government is settling on conspiracy among its most serious charges, legal experts say: it is easier to prove, thanks to the evidence of coordination among a self-identified organization. “It makes it a lot easier to show a conspiracy among people who are part of a group, who are in this together, who have a common purpose,” says Stephen Saltzburg, a former deputy assistant attorney general at the U.S. Justice Department. “And to the extent that you have these recordings of them planning, that’s strong evidence that probably doesn’t exist as to many, many other people at the Capitol.”

But if the conspiracy case shows the ambitions of the government’s prosecution, a TIME review of court documents and interviews with former prosecutors, legal scholars and law enforcement officials about this and related cases also suggests its limits. In the aftermath of the violence, stunned observers expected weighty consequences for those who attempted to interfere with the peaceful transfer of power in American democracy. Trump himself was impeached for his role in inciting the violence.

Yet no one has been indicted on the most serious crime experts discussed in the aftermath of the siege—sedition—and many of those arrested will face only misdemeanor charges. The challenges of making a case against members and associates of loose-knit groups that mainly congregate online, leading some of them to act on their own, has left some worrying that the ultimate remedy for criminal behavior in the American system—punishment under the law—may not be enough to deter future extremist attacks.

The Oath Keepers was formed in 2009, one of the many self-styled militias to pop up after the election of President Barack Obama. It was founded by former Army paratrooper and Yale Law School graduate Stewart Rhodes, with members vowing to “support and defend the Constitution of the United States against all enemies, foreign and domestic.” In building his organization from the ground up, Rhodes, 55, focused on recruiting current and former military, law enforcement and first-responders. Many of those present at the Jan. 6 riot had this sort of background. Rhodes himself was photographed at the Capitol that day, but never entered the building. He has not been charged with a crime.

In a speech late last month at a “border security” rally in Laredo, Texas, first reported by The Daily Beast, Rhodes said he expected to be arrested, “not for anything I actually did, but for made-up crimes.” He said the Oath Keepers had no plan to attack Congress and committed no violence, and said that if his organization wanted to take over the Capitol, they’d have arrived armed and “taken” it. “There are some Oath Keepers right now, along with Proud Boys and other patriots who were in D.C., who are sitting in jail,” he said, “because the powers that be don’t like their political views.”

Prosecutors see things differently. In court hearings and documents presented in recent weeks, they have detailed what they say is “substantial evidence” of a conspiracy by associates and members of the Oath Keepers to stop Congress from validating the 2020 presidential election. The federal government alleges the 12 defendants communicated leading up to the Jan. 6 riot, coordinating plans on social media, setting up channels on chat apps, reserving hotel rooms and exchanging phone calls on the morning of the insurrection. Court documents detail minute-by-minute communications among them as they converged on the Capitol. Prosecutors allege that many of the defendants “prepared themselves for battle” equipping themselves with items such as helmets, “hard-knuckle” tactical gloves, ballistic goggles, radios with an earpiece and bear spray.

It’s also clear that while prosecutors have not indicted Rhodes, they view him as enmeshed in the activities of the group before and during the events of Jan. 6. Rhodes appears throughout recent court filings, identifiable as “Person One,” based on cross-referencing the allegations with publicly available information. On Jan. 4, 2021, he posted a call to action on the Oath Keepers website, declaring it was “CRITICAL that all patriots who can be in DC get to DC to stand tall in support of President Trump’s fight to defeat the enemies foreign and domestic who are attempting a coup, through the massive vote fraud and related attacks on our Republic,” prosecutors say.

In group chats, Rhodes allegedly told Oath Keepers not to bring guns to the rally, because of the District of Columbia’s strict gun laws. “Collapsible Batons are a grey area in the law. I bring one. But I’m willing to take that risk because I love em,” Rhodes said in a group chat, according to court documents. He allegedly added that “several well-equipped QRFs,” military jargon for “quick response forces,” would be awaiting outside city limits—presumably where gun laws are less stringent. (He made similar claims after November’s election when he told conspiracy outlet InfoWars the Oath Keepers would be outside of D.C. “armed, prepared to go in, if the president calls us up.”)

When Congress started certifying the 2020 presidential vote on Jan. 6, prosecutors say Rhodes wrote on a Signal group chat, “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.” Nine minutes before the “stack” pushed past the crowd and police, prosecutors say, Rhodes had a 97-second call with a person helping to lead the group. Rhodes and other Oath Keepers associates allegedly exchanged a total of 19 calls before and during the insurrection, in addition to sharing messages on apps.

Even as the evidence mounts against members of the Oath Keepers and others, the outcome of the federal prosecutions against the rioters is anything but a lock. In the aftermath of the violence, lawmakers, civil rights leaders and former law enforcement officials began to question how all the offenders would be prosecuted. Some suggested the most ambitious charges would be brought. Michael Sherwin, former acting U.S. attorney for the District of Columbia who led the prosecution until this month, told CBS’s “60 Minutes” in March that charges against some of the rioters could include sedition, a rare charge that is defined as conspiring “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.”

Sherwin did not say whom he believed might be charged with such crimes. “I personally believe the evidence is trending toward that, and probably meets those elements,” he said. “I believe the facts do support those charges.”

Others are skeptical that the prosecutors would be able to make charges of plotting sedition, which hasn’t been alleged by the federal government since 2010, stick. Sherine Ebadi, a former FBI special agent who is now an associate managing director at Kroll, an international investigative agency, says despite the massive amounts of evidence it would be very challenging for investigators to prove the Oath Keepers’ intent to commit sedition “beyond a reasonable doubt.” “Seditious conspiracy is extraordinarily difficult to prove,” she says. “It has been very few times successfully prosecuted, and so they have a huge mountain in front of them to do this.” For now, in the Oath Keepers case, prosecutors are alleging the lesser crime of conspiracy to impede Congress’ certification of the electoral college vote and lesser charges.

Rioters who weren’t associated with organized groups may face even lighter penalties. Of those who have been formally charged so far, roughly a quarter face only misdemeanors, according to an analysis by Politico. That may disappoint many Americans, but it won’t necessarily surprise them. In a recent poll by the Pew Research Center, more than 85% of Americans said it was very or somewhat important to find and prosecute the rioters who broke into the Capitol. Nearly half said that the criminal penalties would likely be less severe than they should be, given what happened on Jan. 6.

For now, the investigation continues. The massive electronic record of the riot has produced an unprecedented effort by prosecutors, law enforcement and online civilian sleuths who are still poring over tens of thousands of photos, videos, and messaging app threads in an effort to identify perpetrators and evidence after the fact. More than 70% of those under indictment for their involvement in the Capitol siege were charged in part through evidence from social media accounts, according to an analysis from George Washington University’s Program on Extremism. The conspiracy charges against members of the Proud Boys, another far-right group, focuses on four of their leaders’ efforts to coordinate actions in Washington through an encrypted “Boots on the Ground” channel that had as many as 60 users, according to prosecutors. As of mid-March, all but one of the FBI’s 56 field offices across the country was working on the sprawling investigation.

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Demonstrators destroy broadcast video equipment outside the U.S. Capitol building after they earlier stormed the building in Washington, DC, U.S., on Wednesday, Jan. 6, 2021.Victor J. Blue—Bloomberg/Getty Images

Even the most aggressive prosecution of some of the militia groups’ members won’t stamp out the extremist undercurrents which span dozens of loosely organized groups that mainly converge online. While the large number of arrests and national attention will likely deter some potential law breakers, especially those who were only tangentially involved with extremist ideologies, the FBI and DOJ’s actions won’t get at the root causes of the violence, says William Braniff, the director of the National Consortium for the Study of Terrorism and Responses to Terrorism at the University of Maryland. “We’re just contenting ourselves with a disruption, a criminal justice disruption, but not really risk mitigation,” Braniff says.

What is needed, Braniff says, is a larger government approach to understand and combat the threats at the community level. “They’re really more social movements than they are formal organizations,” Braniff says, “If we instead can appreciate them as enduring social movements it changes our expectations about what our response ought to be.” Many of today’s domestic extremists easily operate as leaderless movements that don’t require much centralized organization. “They already share the same sets of ideas, they share propaganda, they share grievances, they share adversaries or enemies,” Braniff says, “And it’s really just up to individuals to self-organize and act on behalf of those understood ideologies.”

In the worst case for those seeking to deter future extremist violence, the current law enforcement actions may fuel many of these group’s narratives that their members are being persecuted and intimidated for what they see as justified actions—“just taking selfies at the Capitol,” as one user recently posted on a right-wing board. There are indications that these views have widespread traction: according to a April 5 Reuters/Ipsos poll, about half of Republicans believe the Jan. 6 siege was largely a non-violent protest or the handiwork of left-wing activists “trying to make Trump look bad.”

Many of those arrested in the riot have pleaded not guilty and insist they were in Washington to voice their freedom of speech and to keep order. Both James and Minuta were photographed alongside political operative Roger Stone earlier in the day of the Capitol riot. Wearing equipment with Oath Keepers patches, they appeared to be serving as Stone’s bodyguards.

It’s clear that many Americans across the country are sympathetic to those under indictment, and many are even pitching in for their defense. James and at least three other defendants charged in the conspiracy case—Kenneth Harrelson, Kelly Meggs and his wife, Connie—have turned to GiveSendGo, a Christian crowdfunding site, to collect donations for their legal fees. In a sign of a deep reservoir of support, they’ve raised $503,802 thus far, combined.

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Write to Vera Bergengruen at vera.bergengruen@time.com and W.J. Hennigan at william.hennigan@time.com