The Department of Justice has two new investigatory avenues to pursue after indicting eleven Trump supporters for seditious conspiracy for their alleged roles in the Jan. 6 attack on the U.S. Capitol.
“The most interesting aspect of the recent indictments of 11 people accused of involvement in the Jan. 6 attack on charges of seditious conspiracy isn’t who has been charged — but who might be charged next,” former federal prosecutor Barbara McQuade wrote for MSNBC.
The former U.S. Attorney wrote that it is “likely that prosecutors aren’t done yet.”
McQuade explained that the indictments help prosecutors move up to the higher people behind Jan. 6 and may result in cooperation agreements.
“Working up the chain of organized criminal conduct is part of the standard Justice Department playbook. Lower-level offenders can provide leads to higher-level offenders in two ways. One way is through the investigation of simpler crimes. For example, prosecutors may find ample evidence that a particular subject unlawfully entered the Capitol on Jan. 6. If prosecutors can also demonstrate probable cause that the person used his cellphone as a so-called instrumentality to commit the crime, a search warrant can be obtained for the contents of his physical device. A phone may contain evidence of criminal conduct, and it can also provide links to other offenders. Access to phones is particularly valuable in cases in which, as here, the defendants are alleged to have used encrypted messaging applications, such as Signal, to communicate, making it impossible for investigators to obtain the content of incriminating text messages through the normal route — from the service providers,” McQuade wrote.
She also explained the indictments may make it more likely suspects will “flip” and testify against other co-conspirators.
“Another way lower-level offenders can lead to evidence against more serious offenders is through cooperation. Defendants who are charged with crimes and are likely to face conviction can often help themselves by sitting down with prosecutors and providing debriefings of everything they know. Prosecutors refer to this process as ‘flipping’ a defendant from the defense side to the prosecution team. If that information is valuable, prosecutors will ask the court to reduce the cooperator’s sentence. Cooperators can provide verbal testimony, as well as point investigators to documents and other witnesses who can corroborate their stories. Cooperators can even voluntarily share the contents of their cellphones, providing access to encrypted messages that prosecutors may have been unable to obtain in the absence of probable cause that they used the phones as instrumentalities for the crime,” she explained.
The evidence obtained from this methodical approach can be “devastating.”
“The recent charges indicate that this methodical approach has yielded results. The indictment includes verbatim quotations from encrypted text messages among the Oath Keeper defendants, and they are devastating,” she wrote. “The content of other text messages appears throughout the indictment. No evidence is more powerful than the incriminating words of a defendant himself.”
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