Can the Government Convict the Oath Keepers?
Oath Keepers leader Elmer Stewart Rhodes, a Yale-educated lawyer, resumes testifying in his own defense on Monday. Rhodes is one of the defendants charged with seditious conspiracy in connection with January 6 and continuing efforts to interfere with the transfer of power to the Biden administration.
On Friday, his testimony ended before it really got started, because a juror had to leave at 11:30. But before then, Rhodes’s lawyer spent time eliciting (selective) information about his background. His mom, he told this jury, was half-Mexican and picked crops, following what was ripening. He won an award in law school for the best paper on the Bill of Rights. He worked for Ron Paul before going to law school.
There was a telling moment when Rhodes, discussing what he characterized as his “strong political opinions,” slipped and said he supported the “right to riot” before correcting himself and saying he supported the right to “protest.” It would be unsurprising to hear from the prosecution in closing that no amount of window dressing (Rhodes testified about all the hurricane relief trips he’d been on and training women and LGBTQ groups in self-defense) or carefully curated word choices can obscure the government’s proof that he committed the crimes he’s charged with.
Rhodes’s testimony picks back up on Monday. The government will have the opportunity to put on a rebuttal case following the defendants’ testimony, and then it goes to the jury.
In our system, juries are the “deciders of the facts.” I like to discuss this with my first-year law students and have them think about what trials are—situations where people are unable to agree about what the true facts are, about what really happened. Someone has to have the responsibility for making a decision about what and who to believe. We could give that authority to judges, or police, or prosecutors, or even to kings. But we don’t. A fundamental cornerstone of our democracy is having a jury of an accused person’s peers decide whether they are guilty of a crime or not.
So when the Oath Keepers case goes to the jury, presumably sometime next week, it will be up to those 12 men and women to reach decisions about what happened in the run-up to January 6, on that day, and thereafter. And their decisions will have far-reaching repercussions for what comes next as the Justice Department works its way up the ladder of responsibility for the Big Lie and the insurrection.
Rhodes is charged along with his co-conspirators—Jessica Watkins, Kelly Meggs, Kenneth Harrelson and Thomas Caldwell—with seditious conspiracy, obstruction and other offenses in connection with Jan. 6. While Rhodes stayed on the Capitol grounds, directing the movement of others, Watkins, Meggs and Harrelson, in tactical gear, wove through the mob, forced their way up the Capitol steps, and entered the Capitol. Members of the Oath Keepers stashed guns across the river at a Virginia hotel, preparing to act as a quick reaction force to back up the insurrection. Rhodes and other members of the Oath Keepers had purchased as much as $20,000 worth of rifles, ammunition and other equipment, according to the prosecution.
Even after January 6, Rhodes continued to push for interference with the peaceful transfer of power. Prosecutors offered testimony from Jason Alpers, who had unspecified connections to Trump’s inner circle, and who Rhodes asked to pass on a message urging Trump to invoke the Insurrection Act to remain in power. Alpers decided to take the message to the FBI instead of Trump.
This is powerful evidence that suggests Rhodes and his group were focused on doing precisely what the government is required to prove here: that the defendants made an agreement to engage in sedition. The statute has different options that prosecutors can choose among for what “sedition” involves. In the indictment, DOJ alleged that the defendants agreed to use force to prevent, hinder or delay the execution of a law—specifically, the constitutional and statutory provisions surrounding the transfer of power after a presidential election.
Here’s the full statute.
§2384. Seditious conspiracy
If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.
When juries return a “not guilty” verdict, it is just that, a finding that the defendant is not guilty. It is not a finding of innocence, but rather a decision by the jury that the government failed to meet its burden of proving guilt beyond a reasonable doubt. That’s what the jury in this case will be charged with deciding, whether the government met its very high burden of proving, beyond reasonable doubt, that these defendants entered into a seditious conspiracy. It is hard to imagine a more momentous charge being brought against any citizen of this country. A conviction here, will send us further down the path to what I know we all hope will be accountability for those most responsible for what the country is living through, and perhaps a way to begin to end it.
We’re in this together,
Joyce
This criminal and all of his buddies (Oath Keepers, Proud Boys, Right Wing Extremists) must be prosecuted and incarcerated.
There will be a huge outcry if they are not.
We are, indeed, in this together, Joyce, but how fortunate we are to have you as our trusted and admired guide.