The Department of Justice’s decision to seek extremely harsh sentences for nine members of the Oath Keepers militia, all convicted of crimes relating to the events of January 6, 2021, indicates that the government is crafting a narrative of treachery and is growing closer to casting President Trump as its central character. 

The sentencing memorandum and “motion for upward departure” — meaning the government is asking for sentences more draconian than the usual prescriptions — comes on the heels of a passel of convictions for seditious conspiracy secured against members of another far-right group, the Proud Boys.    

The filing requests individual sentences for those Oath Keepers members and associates convicted by a jury, six of whom were convicted of seditious conspiracy. It requests 25 years for Elmer Stewart Rhodes III, the leader of the group and an alumnus of Yale Law School. The final decision will be up to the presiding federal district court judge, Amit Mehta.  

The government writes, “These defendants were prepared to fight. Not for their country, but against it. In their own words, they were ‘willing to die’ in a ‘guerrilla war’ to achieve their goal of halting the transfer of power.” The government asserts that the convicted “played a central and damning role in opposing by force the government of the United States.”

In naming a “conspiracy” to “oppose by force the lawful transfer of presidential power from President Trump to President-Elect Biden,” the DOJ lays the groundwork for culpability that stretches from the lowliest rioter to, potentially, Mr. Trump. The DOJ notes how, to “fellow rioters, the Oath Keepers’ coordination, tactical attire, and reputation provided an imprimatur of legitimacy to the attack.”

Mr. Trump has faced an incitement to insurrection charge before, during his second impeachment trial, at which he was acquitted. 

It is unclear, even to the justice department, whether the Constitution permits charging a president with the same crime — from the same set of facts — for which he was already tried and “found not guilty.” That is uncharted constitutional ground.   

The government rejects the notion that January 6 was an unplanned riot, noting, “Leading up to January 6, the defendants and their co-conspirators believed their view of the Constitution trumped all others and anointed themselves the ‘Guardians’ of their ‘Republic.’” 

“At its essence,” the government notes, “these defendants’ crimes are the antithesis of respect for the law.” Ascribing that position to Mr. Trump will be the work of the special counsel, Jack Smith. The government here writes that for Rhodes, if “President Trump did not stop the election ‘fraud,’ he and his followers would have to fight a’“much more desperate, much more bloody war.’”

At times, the government’s zeal in securing long prison sentences for the Oath Keepers can cast an exculpatory rather than accusatory light on Mr. Trump. One Oath Keeper, Edward Vallejo, age 64, for whom the government is seeking a 17-year sentence, is reported to have shared on a podcast that, “I’m just praying to God that Trump has his head on f— straight” and urging him “to bring the f— hammer down.”

Mr. Trump did not bring that “hammer down” strong enough to continue as president, but now the government is set to throw the book at Vallejo. To that end, January 6 is described in lurid terms, but never as an “insurrection,” which carries particular legal valence. Only a single court, a state one in New Mexico, has ruled that what happened was in fact an insurrection.