The Sedition trial of five Oath Keepers is just underway in Washington, DC. The government charges the leaders of the far right group with mobilizing and organized armed members to stop Congress from counting electoral votes to prevent Joe Biden from taking office.

Stewart Rhodes, the group’s leader, says they were counting on Donald Trump to invoke the Insurrection Act. Trump didn’t, and months after the Capitol insurrection, some were arrested. A federal judge found that Rhodes was a “clear and continuing danger,” and denied bail. Rhodes has been in jail since his arrest in January.

Conspiring to overthrow the government is a felony, and the defendants are at risk of prison sentences of twenty years or more. Arresting, trying and punishing criminals is a function of government, a means to keep social order.

But the line between crime and dissent can get fuzzy.

Right now, in Iran and in Russia, protesters are being arrested and jailed, with (maybe) some kind of trial in the future. The state strategy is not just to get them off the streets and out of the public eye, but to warn off others from joining them. The possibility of harsh punishment–maybe underscored with a beating in the streets–can be a powerful deterrent.

Repression works by separating out dissenters from broader political support. Punishment is one tool for isolating and stigmatizing criminals/reformers/patriots/activists from everyone else. But punishment that’s overly harsh or capricious can have exactly the opposite effect, garnering public sympathy. Governments try to punish criminals without creating public martyrs.

The Oath Keepers are only the most recent of the Capitol insurrectionists to face trial. (Even the label, “insurrectionists,” reflects a political judgment.) Since January 2020, more than 900 protesters have been arrested and charged with various crimes, and nearly 400 have entered guilty pleas. A few have gone to trial and been convicted, and are now serving time. Others are detained awaiting trial. (Here’s the long list from the US Attorney’s Office.)

Rhodes and his co-defendants are mounting a vigorous defense, claiming their conduct was lawful and their cause righteous, but three of his allies have already entered guilty pleas and are likely to be called to testify. In addition to the testimony of co-conspirators, the government will deploy videos, phone records, testimony from police and informants, and the defendants’ statements. The evidence that Rhodes and the rest were trying to overturn the election seems pretty overwhelming.

What happens in the courtroom is important, but what happens outside in response is even more important. Thus far, the Capitol protesters, including the Oath Keepers, have received (astonishing!) support from a few Republican politicians in office. Donald Trump has promised more, pledging to issue blanket pardons–plus apologies–if he is returned to the presidency.

So, the stakes are high, and the path forward is more difficult than it might initially seem. The government needs to convince a jury that the defendants broke serious laws. The prosecutor and judge must also show a much broader public that these Oath Keepers deserve what they’re getting, and certainly not the support of anyone who claims to be a patriot.