Prosecutors’ Pursuit of Even Harsher Sentence for Top Oath Keeper Could Be To Prep for a Prosecution of Trump

The decision of the Department of Justice to appeal the sentence of the founder of the Oath Keepers — it wants to put him away for longer than the court saw fit to do and longer than the law even recommends — appears to be to set a precedent that could be used for President Trump.The Oath Keepers’ founder, Elmer Stewart Rhodes, himself a constitutional lawyer educated at Yale, drew a sentence for seditious conspiracy of 18 years. The upper limit of recommended sentences is 20 years. The government, though, is appealing, asking for a sentence of 25 years. The request for a stiffer sentence comes as a clutch of former prosecutors, defense counsel, and other lawyers are working outside of court to sketch the logic of a hard line against the former president. They are doing so even though the 45th president has yet to be charged with any crime related to the events of January 6, 2021. A liberal legal group called Just Security released a “model prosecution memo” in respect of Mr. Trump. It concluded that what it called his “combined support for the insurrectionists and inaction while the insurrection was ongoing seems to more than pass the bar to support charges.”Oath Keeper Elmer Stewart Rhodes who was sentenced to 18 years in prison. AP/Susan Walsh, fileThe memo presumes that there was an insurrection, a point that is disputed. And Mr. Trump’s actions or inactions are still being investigated. The Just Security memo is consonant, though, with a prediction recently made by Rhodes, that his own conviction foreshadows what is to come for Mr. Trump.“They’re going to do the same thing to President Trump that they did to me,” Rhodes recently told the Washington Times newspaper. He added: “I was found guilty of seditious conspiracy, although they had zero evidence of an actual plan.” His warning to Mr. Trump was that “you’re going to get railroaded.” The DOJ initially requested that Rhodes be sent away for 25 years, a total arrived at by tacking on a terrorism enhancement to the statutory maximum. Judge Amit Mehta, who meted out the sentence, agreed that the “historic significance” of what Rhodes had done justified extra time, just not as much as the DOJ hoped.Prosecutors made similar requests for several of Rhodes’s fellow militiamen. An Oath Keeper from Florida, Kelly Meggs, received a 12-year sentence where prosecutors sought 21 years. A New Yorker, Roberto Minuta, received four and a half years, rather than the 17 sought by prosecutors.All of these sentences are being appealed to riders of the District of Columbia United States appeals circuit. The DOJ’s move caught Special Counsel Robert Mueller’s former deputy, Andrew Weissman, by surprise. The onetime prosecutor — who hosts a podcast called “Prosecuting Donald Trump” — tweeted that “this is very surprising; appeals of sentences by the govt are rare.”A longtime litigator, Harvey Silverglate, concurs. He tells the Sun that “appellate courts usually loathe to overturn discretion of trial court judge.” He, too, termed such sentences “rare.” Mr. Silverglate calls the push for even stricter sentencing a “bad idea” driven by a desire for “revenge.”He went so far in respect of the appeal for longer sentences as to quote the Bible’s promise that “you reap what you sow.” The memorandum from Just Security, alert to both rarity and the precedent set by Rhodes’s fate, argues that a “series of rare convictions of some of the leading insurrectionists under the charge of seditious conspiracy have now laid the groundwork for closely related insurrection charges against Trump.”The push for stiffer sentences, which are not being handled by Mr. Smith’s office, could nevertheless benefit the special counsel’s effort to tell a January 6 story that persuades a jury of Mr. Trump’s guilt. The more egregious the behavior of Rhodes and others, the greater could be the culpability of the president who promised that things at the Capitol would get “wild.”

Prosecutors’ Pursuit of Even Harsher Sentence for Top Oath Keeper Could Be To Prep for a Prosecution of Trump

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