“DOJ wants clear precedent”: “Very surprising” DOJ appeal argues Oath Keepers' sentences too lenient

The Department of Justice on Wednesday appealed the sentences of seven members of far-right extremist group the Oath Keepers — including founder Stewart Rhodes — for their roles in the Jan. 6 Capitol attack. According to Politico, the appeal signals prosecutor's dissatisfaction with the severity of the members' sentences. 

"This is very surprising," tweeted former federal prosecutor Andrew Weissmann, a New York University law professor, explaining that appeals of sentences by prosecutors are "rare."

"Sentencing appeals are unusual (judges have considerable discretion) & while the govt can object to procedural or substantive flaws at sentencing, the cases are hard to win," wrote former U.S. attorney and federal prosecutor Joyce Vance. "Strong sign DOJ wants clear precedent for long sentences for those even more responsible for the insurrection that the Oath Keepers."

U.S. District Court Judge Amit Mehta in May delivered the harshest sentence of any Capitol attack defendant — 18 years — to Rhodes to reflect his leadership role in what the federal judge described as a criminal conspiracy aiming to violently disrupt the transfer of presidential power.

The sentence for Rhodes, a disbarred attorney and Yale Law School grad, however, was seven years shorter than the prosecutor-recommended 25-year prison term and four years below the "guidelines range" they agreed upon based on Rhodes' conduct.

Several of Rhodes' associates received sentences that similarly fell below the recommended guidelines ranges. Among those who were convicted of seditious conspiracy like Rhodes:

• Florida Oath Keeper leader Kelly Miggs was sentenced to 12 years; the Justice Department sought 21.
• Robert Minuta of New York received a 4.5-year sentence; the DOJ sought 17 years.
• Joseph Hackett of Florida was sentenced to 3.5 years; the DOJ sought 12.
• Arizona's Ed Vallejo was sentenced to three years; the Justice Department sought 17.
• Florida's David Moerschel received a three-year sentence; the Justice Department sought 10 years.

The department also appealed the convictions of two Oath Keepers who, though convicted of conspiring to obstruct Congress, were acquitted of seditious conspiracy. Jessica Watkins of Ohio received an 8.5-year jail sentence, though the DOJ sought 18 years, and Kenneth Harrelson of Florida was sentenced to 4 years, after the DOJ sought 15.

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The sentences reflect Mehta's view of Rhodes as the main force behind the conspiracies. During sentencing hearings, several defendants claimed that Rhodes manipulated or roused them into participating in the insurrection.

Dozens of Oath Keepers, after acting as security for speakers at former President Donald Trump's rally that day, would join the rioters and lead one of the early advances into the Capitol. The group split up once inside with half the members gunning for the Senate and the other half heading toward the House. Three Oath Keepers involved pleaded guilty to seditious conspiracy and cooperated with federal prosecutors.

A spokesperson for the Justice Department declined Politico's request for comment. Though scant information is included in the court filings — the appeal notes the government's objections but does not provide a rationale — more information is likely to come from formal documents that will be filed in the coming months.

The government's appeals will likely be considered alongside the appeals filed by the same defendants who are challenging both their convictions and their sentences.