Oath Keepers trial: A 1800s-inspired defense meets most significant Jan. 6 prosecution yet

In a case that could be a referendum on the insurrection, "prosecutors are really going for the three-pointer" against an untested, controversial defense.

Stewart Rhodes and others from the Oath Keepers, the armed paramilitary organization he founded, begin their trial this week in one of the most high-profile prosecutions to emerge from the insurrection at the U.S. Capitol.

The stakes are high for the federal government, which seeks to make the case not only that Rhodes and the others helped lead the attack on Jan. 6, 2021, but that they did so as the apogee of a conspiracy they had been planning for months or years.

Specifically, Rhodes and others are accused of attempting to oppose by force the peaceful transition of presidential power by disrupting Congress as it certified the results of the 2020 election. That conspiracy, prosecutors allege, involved training, communication and firearms.   

While hundreds of Jan. 6 prosecutions and plea agreements have dozens of people to prison with typical sentences of just a few weeks, the Oath Keepers trial, scheduled to last six to seven weeks, could see the defendants serve decades in prison. 

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The heavy sentences are not the only thing that makes this case more consequential. 

Stewart Rhodes, founder of the Oath Keepers, said weeks before the Capitol riot on Jan. 6, 2021, that his group was “armed, prepared to go in if the president calls us up.”

The trial almost feels like a referendum on the insurrection itself, and whatever the outcome, it will have reverberations across the landscape of American far-right extremism, said Jared Holt, a senior researcher at the think tank the Institute for Strategic Dialogue and an expert on domestic extremism.

“Prosecutors are really going for the three-pointer shot instead of a layup,” Holt said. “If they're successful, it will send a very powerful message, and if they're not successful, that could also be a powerful message in a more negative way.”

Reflecting the historic nature of the trial, Rhodes’ attorneys have crafted an extraordinary legal defense that they claim has never been tested before. Befitting Rhodes’ personal background as a gruff-talking Yale law school graduate and constitutional scholar, the defense relies on an arcane and controversial interpretation of the Insurrection Act, a statute from the 19th century. 

But three legal experts told USA TODAY they don’t see that argument standing up in court. And with so much of what the defendants are accused of doing enshrined in video evidence and in weeks of secret messages between them, the Oath Keepers will have an uphill battle convincing a jury they should be set free, said Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection at Georgetown University in Washington, D.C.

“The indictment is replete with evidence of a conspiracy to actually do exactly what the Oath Keepers then did on January 6,” McCord said. “So jurors don't have to sit there and wonder, ‘Well, maybe they were just joking;’ or ‘Maybe they were just fantasizing,’ or ‘Maybe they really wouldn't have done it,’ because they actually did do it.”

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Military ‘stacks’ and a stash of weapons

Rhodes and his fellow Oath Keepers were planning for an attack on the Capitol for months before Jan. 6, according to a federal grand jury indictment. On encrypted messaging apps, the defendants discussed tactics, training and weaponry and talked of armed conflict, prosecutors say.

“We aren't getting through this without a civil war. Too late for that. Prepare your mind, body, spirit," Rhodes allegedly wrote in an encrypted chat on Nov. 5, 2020.

Prosecutors claim – and Rhodes’ defense attorneys acknowledge – the Oath Keepers set up heavily armed “Quick Reaction Forces,” or “QRFs,” at a Comfort Inn in Arlington, Virginia, a 7-mile drive from the Capitol. Those QRFs were ready with an arsenal of weapons and equipment in case they were ordered to head to the Capitol by Rhodes or other senior Oath Keepers, prosecutors say.

More:How an Arizona man was charged with seditious conspiracy in the U.S. Capitol riot

Prosecutors say this hotel surveillance footage shows Ed Vallejo, on the left, and an unidentified Arizona Quick Reaction Team member on the right, wheeling bins and a large bag into a Comfort Inn across the Potomac River from Washington, D.C. , before the U.S. Capitol riot.

Those forces were never sent for, and the Oath Keepers are not accused of bringing firearms into the Capitol or even to its immediate surroundings. But the group’s members did take other actions, prosecutors say. 

At the Capitol itself, a group of several Oath Keepers led by Florida chapter leader Kelly Meggs marched in a military formation, known as a “stack,” into the Capitol building, the indictment says. The defendants lined up in a row and placed their hands on the shoulder or back of the person in front of them, then marched in unison. Once inside the Capitol, they assaulted law enforcement officers and moved around the building in search of House Speaker Nancy Pelosi, whom they didn’t find, the indictment says.

Kelly Meggs is an Oath Keeper from Florida who pleaded not guilty to federal charges related to the U.S. Capitol riot.

A second group in military formation led by Alabama Oath Keeper Joshua James – who pleaded guilty to seditious conspiracy in March and is cooperating with prosecutors – also entered the Capitol, where members assaulted Capitol police officers, according to the Rhodes indictment.

Rhodes himself is not accused of entering the Capitol building.

By the evening of Jan. 6, Rhodes and his suspected  co-conspirators were having dinner at an Olive Garden restaurant in Virginia. They were still fuming about the election and planning future action, the indictment says. In the coming weeks, some of the defendants are accused of destroying or erasing their cellphones and other records.

Much of what the defendants said and did in the run-up to Jan. 6 and on the day is captured in messages, recordings, video and photographs. One of Rhodes’ attorneys, James Bright, has been frank about the weight of evidence against his client and other defendants. 

But he also points out that, unlike other defendants, Rhodes never went into the Capitol, is not accused of physically assaulting anybody, and didn’t break any Washington, D.C., gun laws, because the extra members with caches of guns remained in Virginia.

As to the broader allegation that the extremist group conspired to commit an armed overthrow of the government, Rhodes’ attorneys have crafted what they say is a first-of-its-kind defense argument based on an arcane interpretation of a law from 1871.

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A unique Jan. 6 defense

In a brief filed with the court this month, Rhodes’ attorneys Bright and Phillip Linder argue that Rhodes lacked the “mens rea,” or the intention or knowledge of wrongdoing, in the crimes he is accused of.

Rhodes and his accomplices sincerely believed at any moment on or before Jan. 6, President Donald Trump would invoke the Insurrection Act and call upon people like them as an “unorganized militia” to intervene with the certification of what they considered a fraudulent election, the attorneys claim.

Oath Keepers President Stewart Rhodes in 2020.

The Insurrection Act, which is actually a collection of statutes dating as far back as 1807, gives a president extraordinary powers to order both the “organized” militia (federal or state law enforcement and military) and the nation’s “unorganized” militia (essentially able-bodied people ages 17 to 45 or ages 17 to 64 who have served in the military) to intervene in civil unrest or conflict. Another piece of the law from 1871 broadens the ways the president can invoke this power – in ways that could have applied in January 2021, defense attorneys argue in court filings. 

The defense argument boils down to this: If Trump had, indeed, invoked the Insurrection Act, all of the actions taken by Rhodes in planning for the Jan. 6 insurrection would have been legally justified. And because Rhodes sincerely believed Trump was going to do so, he was engaged in activity that was legal, not illegal.     

“Each of the overt acts that the Government alleges to be in furtherance of sedition were, in fact, in reliance and preparation for Trump lawfully exercising his unequivocally broad power under the Insurrection Act,” the brief reads. “What the Government contends was a conspiracy to oppose United States laws was actually lobbying and preparation for the President to utilize a United States law.”  

Bright, one of Rhodes’ three defense attorneys, told USA TODAY that the powers of the president are “borderline absolute,” which furthers the defense’s argument that if the act was invoked, the Oath Keepers’ actions would have been legal. 

“It’s simple in many ways,” Bright said Tuesday. “It’s just never been tried before.”

There are at least three major problems with this argument, said Elizabeth Goitein, senior director of the Brennan Center for Justice's Liberty & National Security Program and an expert on the Insurrection Act:

First, Trump didn’t invoke the Insurrection Act on Jan. 6, and the Oath Keepers attacked the Capitol and tried to stop Congress from certifying the election anyway. Second, while Goitein acknowledged the act gives a president significant unilateral power to call in a militia to help quell an uprising, civil unrest or insurrection, it was never intended to actually help a president spur an insurrection against Congress. And last, Goitein said, it’s clear from the evidence against the Oath Keepers that they never really believed that Trump needed to invoke the act for them to attack the Capitol. Indeed, they did it anyway, she said.    

“It’s an absurd defense,” Goitein said. “It’s completely devoid of any merit. The facts of the case make it very clear that Rhodes was planning to act with or without an Insurrection Act Invocation – Rhodes said himself that he was hoping for an invocation so that the attack would have legal cover, but he was planning to go ahead with or without that cover.”

Further confusing the issue, in a filing on Tuesday, Rhodes’ attorneys requested that the court ban prosecutors or witnesses from using certain terms including “white supremacist,” “extremist” and – rather incongruously given the Insurrection Act defense – “militia.” 

The trial gets under way

The jury selection phase of the trial opened Tuesday with a laugh when the court clerk told spectators to “all rise” and the judge did not make an entrance. 

Three tables overflowing with prosecutors, defense attorneys and the defendants filled the front of the courtroom. 

Rhodes wore thin wire glasses over his signature eye patch, along with a navy blue suit with a handkerchief of the same color. The other defendants mostly dressed more casually. 

Judge Amit Mehta denied a motion by the defense to move the trial across the Potomac River to Virginia, where the defense argued the defendants would face a more fair trial because of a different jury pool and less media coverage. In that motion, the defense provided a survey of Washington residents that purportedly showed 68% of respondents held an “unfavorable” view of the Oath Keepers. 

But Mehta said that of the 150 potential jurors who responded to a pretrial questionnaire, the majority indicated no prejudgment bias. 

On the defense’s charge that a Washington jury would be overly informed by the media, Mehta said he “couldn’t disagree with that any more,” adding that with “everything else happening in the world,” he did not think the jury pool would be especially focused on coverage of the Oath Keepers or its members’ trial. 

By 6:30 p.m., 17 qualified jurors had been selected from the 29 jurors questioned in court Tuesday. 

Several jurors were dismissed for holding strong views against former President Donald Trump, believing that the Oath Keepers are racially prejudiced, or allegiance to Washington as their home.

“This is my home, and I felt like they invaded my home,” said Juror 1582, who was later dismissed.

One juror was dismissed for believing too fervently that Jan. 6 defendants have been sentenced too harshly, describing those sentences as a “travesty.” 

Jury selection continues this week until reaching a full pool of 45 qualified jurors, from which 12 jurors and four alternates will be selected. Opening arguments are expected to begin next week.

The defendants

Though Rhodes is the most high-profile Oath Keeper charged in the grand jury indictment, he is joined by eight suspected co-conspirators from around the country, four of whom are on trial with Rhodes: 

Kelly Meggs. A resident of Dunnellon, Florida, Meggs was the leader of the Florida chapter of the Oath Keepers, according to prosecutors. He and his wife, Connie Meggs, allegedly joined the first “stack” of Oath Keepers that entered the Capitol. Kelly Meggs is charged with seditious conspiracy in the same indictment as Rhodes, but his wife is being prosecuted separately. Separate from the criminal case, Kelly Meggs has also been featured in the hearings of the congressional committee investigating Jan. 6, which accuses him of coordinating a militia alliance with another extremist group, the Proud Boys. 

Kenneth Harrelson. A resident of Titusville, Florida, Harrelson allegedly aided Meggs in running the Florida Oath Keepers. Prosecutors say he was on private chat groups with the other Oath Keepers, transported firearms to Washington, and entered the Capitol ahead of the first “stack.”  Harrelson’s attorney asked for him to be tried separately from the other defendants in August. The judge denied the request.

Oath Keeper Jessica Watkins of Ohio faces seditious conspiracy and other charges related to the Capitol riot. She has pleaded not guilty.

Jessica Watkins. An Army veteran from Woodstock, Ohio, Watkins denounced the Oath Keepers in February 2021, saying she was canceling her membership and was “humbled and humiliated” by the charges against her. Prosecutors say she was a pivotal organizer of the attack, that she brought weapons for the other members who were waiting in Virginia, and that she entered the Capitol as part of the first group in tactical formation.  

Thomas Caldwell being interviewed outside the U.S. Capitol on January 6, 2021.

Thomas Caldwell. A resident of Berryville, Virginia, Caldwell is a Navy veteran who also once worked for the FBI. Caldwell has claimed that he is too old and infirm to have fully participated in the insurrection and that he was never a member of the Oath Keepers. Prosecutors say he coordinated the planned armed response and engaged in reconnoitering the Capitol. He is also accused of entering restricted areas of the building.

Four other members, who are part of the same federal indictment, will be tried in November: 

Roberto Minuta. A tattoo shop owner from Newburgh, New York, Minuta allegedly raced to the Capitol from the armed reserve group on the afternoon of Jan. 6 and formed the second “stack” that entered the building. Minuta also livestreamed the attack on Facebook, prosecutors say. 

Joseph Hackett. Another Floridian, from Sarasota, Hackett is accused of being part of the first Oath Keepers tactical formation to attack the Capitol. Prosecutors say he took part in a training on “unconventional warfare” in November 2020. He was released from jail last year and has been in home confinement since then.

Ed Vallejo spent the year before his January 2022 arrest working with a fledgling nonprofit group called Homefront Battle Buddies that sought to connect veterans to alternative health therapies such as marijuana.

David Moerschel. The fourth of four Floridians charged in the indictment, Moerschel of Punta Gorda was also allegedly part of the first tactical group, communicated in the chatrooms and transported weapons to Washington.

Edward Vallejo: A 63-year-old from Phoenix, Vallejo is accused of coordinating the QRF in Virginia. He allegedly messaged the other Oath Keepers: “QRF standing by at hotel. Just say the word.”