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Washington Post photo by Aaron Davis Stewart Rhodes, founder of Oath Keepers, pictured Feb. 28, 2021, was sentenced to 18 years in May, the longest for any Capitol attack defendant.
The Washington Post
16:02 JST, July 14, 2023
WASHINGTON – U.S. prosecutors will appeal the sentences of Stewart Rhodes and all seven co-defendants sentenced to date with the founder of the extremist group Oath Keepers after two seditious conspiracy trials in the Jan. 6 attack on the U.S. Capitol, according to court filings late Wednesday.
Such government appeals are rare, and the bare-bones notices lodged ahead of a July 20 deadline with Rhodes’s trial court in Washington contained no details or legal reasoning, which an appeals court will require later.
A spokeswoman for the U.S. attorney’s office for Washington, D.C., said the filing “merely preserves our ability to appeal,” suggesting speculation about the Justice Department’s intentions was premature.
Still, the move broadly suggests disagreement with the length of sentences imposed by U.S. District Judge Amit P. Mehta in one of the two highest-profile prosecutions to date alleging plots to violently oppose federal authority and to obstruct the peaceful transfer of presidential power from Donald Trump to Joe Biden after the 2020 election.
Sentences imposed by Mehta in May ranged from 18 years for Rhodes – the longest for any Capitol attack defendant – to three years for two co-defendants.
An attorney for Rhodes scoffed at the notion that Rhodes’s term was over-lenient – prosecutors had requested 25 years. Lawyers for other Jan. 6 defendants dismissed the government’s move as “performative” and unlikely to result in a reversal of a trial judge’s sentencing decisions.
“Perhaps the [Justice Department] is rather upset that Judge Mehta did not sentence Mr. Rhodes to the ancient Socratic method of death by drinking hemlock,” Rhodes attorney James Lee Bright wrote in an email, alluding to the punishment imposed on the Greek philosopher Socrates for defying the leaders of Athens.
The most immediate impact of the government’s opposition may be felt by the leaders of a second right-wing group, the Proud Boys, who face sentencing for the same offenses, including seditious conspiracy, in late August. The government may spell out where it disagrees with Mehta in written sentencing recommendations due Aug. 17 for former Proud Boys chairman Henry “Enrique” Tarrio and three others before another judge, U.S. District Judge Timothy J. Kelly.
Legal analysts say that federal sentencing rules are complex and highly technical, and the eight Oath Keepers defendants were not all convicted of the same charges, further complicating any assessment.
Nevertheless, Mehta’s sentences were generally a fraction of the time sought by prosecutors for Rhodes followers, even as he was the first judge to approve U.S. prosecutors’ request to apply an enhanced terrorism penalty in a Capitol siege case. Breaking with a handful of other judges who had declined to apply the enhancement in simpler Jan. 6 cases, Mehta found the Oath Keepers’ conduct was “calculated to influence or affect the conduct of the government by intimidation or coercion, or to retaliate against government conduct.”
The terrorism enhancement is seldom applied, and defense attorneys have decried as coercive the government’s threat to seek it against some Jan. 6 defendants who reject plea deals. The penalty is the “nuclear option” in such talks, because prosecutors if successful can ratchet up advisory sentencing guidelines ranges by 50 percent or more, even for offenses not designated by statute, as was the case for Capitol attack defendants.
The final sentence is up to a judge, however, and Mehta after applying the enhanced terrorism guideline to the Oath Keepers defendants sentenced several to below-guidelines terms.
Government appeals of criminal sentencings are highly infrequent, requiring approval by the Solicitor General. That does not appear to have been decided yet regarding the Oath Keepers, but appeals have come in the past in major national security cases.
In 2017, a federal appeals court sided with U.S. prosecutors in Washington that a 22-year sentence handed down to Ahmed Abu Khattala for the deadly September 2012 attack on American facilities in Benghazi, Libya, was “shockingly low,” and ordered his resentencing, which remains pending.
Similarly in 2008, federal prosecutors successfully appealed the 30-year sentence given to Ahmed Omar Abu Ali, a young Texas native who had joined a terrorist group in Saudi Arabia and discussed and researched possible attacks on the United States. Ali was resentenced to life in prison.
On the other hand, U.S. prosecutors failed in 2017 to reverse the required resentencings of three Blackwater security contractors convicted in the 2007 massacre of 14 unarmed Iraqi civilians in a Baghdad traffic circle whose sentences were reduced before they were pardoned by Donald Trump in late 2020. The appeals court in Washington rejected prosecutors’ novel use of a statute barring the use of military firearms while committing another felony – typically leveled at gang members and bank robbers – against security contractors working abroad for the U.S. government, that had escalated their punishment.
