Before trial, Oath Keeper Rhodes makes final attempt to shape defense

Elmer Stewart Rhodes and a coterie of his Oath Keepers cohorts will go to trial next week for seditious conspiracy—and a host of other charges—tied to the Jan. 6 attack on the U.S. Capitol.

The trial begins Tuesday before U.S. District Judge Amit Mehta in Washington, D.C., not far from where prosecutors are expected to tell jurors that Rhodes and co-defendants Thomas Caldwell, Kenneth Harrelson, Kelly Meggs, and Jessica Watkins arrived more than a year ago, intent on forcing Congress to stop the process of certifying the results of the 2020 election. 

This week, Rhodes and his team of attorneys filed a flurry of motions on the docket as the former leader of the self-professed militia group attempts to define the final contours of his defense before his fate is left to jurors to decide. 

RELATED STORY: The first Oath Keeper seditious conspiracy trial gets underway next week

One of the key arguments Rhodes advanced this week centers on the Insurrection Act. The Insurrection Act authorizes the president to temporarily deploy military forces inside its borders to stop or suppress rebellions and thwart invasions.

In its most simple terms, Rhodes contends—by way of attorneys James Lee Bright and Philip Linder—that he and fellow Oath Keepers were not intent on committing criminal acts of seditious conspiracy at all. They were simply waiting with a “reasonable reliance” on Trump to invoke the Insurrection Act. 

Trump never invoked the Insurrection Act on Jan. 6—or at any time in his presidency. But Rhodes says Trump did not need to invoke it because on the day Congress met to certify the election slates, he was only acting in anticipation of what he thought would be lawful should the Insurrection Act be invoked.

In the eyes of the Justice Department, this is an unwelcome flirtation with something known as a public authority defense. The public authority defense effectively says: If I broke the law, it was because the government authorized me to break it.

Rhodes entered a motion this week asking the court to permit a lengthy series of convoluted definitions of the Insurrection Act to jurors and the history of its uses. He provided some examples as well from various times when Trump had toyed with the idea of invoking the Insurrection Act to support his case. 

Prosecutors pushed against the key issue for the government to resolve at trial is the matter of his intent before, on, and even after Jan. 6.

And, with the mountain of evidence amassed against him—including reams of Oath Keepers’ correspondence spanning all the way back to just after the 2020 election—prosecutors say Rhodes’ intent was clear: He intended to stop the peaceful transfer of power by overseeing the coordination of weaponized “quick reaction force” teams meant to support former President Donald Trump. 


Per the outlet Law & Crime, during a pretrial conference on Thursday, Judge Mehta decided how the Insurrection Act could be utilized by the defense at trial:

“I think the bottom line is [that] the government does not object to the defense getting up and saying, in opening statement, that these defendants did what they did in anticipation of the president’s invocation of the Insurrection Act,” the judge said. “There will be no statement about the legality of the president doing so, but they understood the president had the authority, and they took the following actions because they understood him to have the authority.”

A seditious conspiracy charge, upon conviction, carries a 20-year maximum prison sentence. Rhodes, Watkins, Harrelson, Caldwell, and Meggs are facing multiple charges in addition to this one.

The trial is expected to last four to five weeks. Some jurors have already been screened through a questionnaire process, but the in-person selection process, or voir dire, will start Tuesday and could take up the remainder of the week. 

Many Jan. 6 defendants have unsuccessfully argued, including Rhodes, that it would be impossible to receive a fair trial in Washington given its proximity to the Capitol. On the juror questionnaire, some questions were related specifically to the events of Jan. 6.

Prospective jurors were asked whether they had ever been inside the Capitol or on its grounds, had a close friend or family member who lived on Capitol Hill on Jan. 6, whether they were at the Capitol on Jan. 6 and if they had concern for the safety of themselves, a friend, or family member on Jan. 6. 

Other inquiries sought to parse out who a juror might have voted for in the last election, how much footage of Jan. 6 they had seen, whether they watched the events live, and if they knew or had connections to anyone serving on or working for the Jan. 6 committee. When the trial convenes next week, attorneys for both the prosecution and defense and Judge Mehta will have a chance to sort out any concerns that prospective jurors might have raised with their responses. 

There are more than 100 jurors expected to undergo voir dire next week. 

After this trial, another batch of Oath Keepers will face a jury in Washington in November: Edward Vallejo, Joseph Hackett, David Moerschel, and Roberto Minuta. 

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