Federal prosecutors on Monday laid out their sprawling case against Oath Keepers leader Stewart Rhodes and four other members of the far-right militia as it brings rarely used seditious conspiracy charges in one of its most high-profile trials against those who stormed the Capitol on Jan. 6, 2021.
Rhodes is on trial alongside Oath Keepers Kelly Meggs, Kenneth Harrelson, Jessica Watkins and Thomas Caldwell, each accused of conspiring to use force to overthrow the government — a crime that carries a sentence of up to 20 years in prison.
“They concocted a plan for an armed rebellion to shatter a bedrock of American democracy,” Assistant U.S. Attorney Jeffrey Nestler told jurors at the U.S. District Court for the District of Columbia.
Nestler said the group broke a 200-year tradition and “banded together to do whatever was necessary, up to and including the use of force” to prevent the peaceful transition of power from former President Trump’s administration to President Biden’s.
Monday’s opening argument set the scene for a case expected to stretch for more than a month that will detail the two months of planning leading up to Jan. 6 and the days after, including direction from Rhodes to his followers to delete any incriminating evidence of their time in the Capitol.
The government’s presentation showed Oath Keepers members undergoing training for the Capitol that day, displaying messages from Watkins that she needed her crew to be “fighting fit.” They also showed video of the group using a “stack formation” to enter the Capitol, playing footage and displaying messages of them bragging about making it into the building and tangoing with police.
Rhodes never entered the Capitol that day, instead directing Oath Keepers “like a general overlooking the battlefield.”
The seditious conspiracy statute under which the government is bringing charges was crafted following the Civil War. It has since been used infrequently and often unsuccessfully. The five defendants are also facing charges for conspiring to obstruct Congress and destruction of government property, among other charges.
Attorneys for Rhodes have argued that Oath Keepers were standing ready if Trump invoked the Insurrection Act, which allows the president to call upon the military and National Guard to quell a rebellion.
Phillip Linder, an attorney for Rhodes, sought to portray Rhodes as taking lawful, if unpopular, actions that day.
Linder asked jurors to “hold yourself to the burden of proof.”
“You may not like some of the things you hear and that our clients did but the evidence we show our clients did nothing illegal. Even if it looks inflammatory, they did nothing illegal,” he said.
Attorneys for the group each portrayed their clients as being in town to attend rallies and serve as security for some speakers.
The government anticipated that argument, with Nestler saying it was “a little suspect” given that Oath Keepers are not licensed, trained or paid for their work as security guards.
“Even being bad security guards isn’t itself illegal,” Nestler said, but planning to overthrow the government is.
Attorneys for both the government and the defendants spent ample time discussing the group’s Quick Reaction Force staged at a Virginia hotel, with DOJ showing members of the group bringing in suitcase after suitcase of weapons and supplies.
The QRF was chosen for its proximity to D.C., the government said, allowing Oath Keepers to quickly get more weapons to the Capitol if needed, including even by river if necessary.
Linder said Rhodes “did not have violent intent that day” and “left his weapons behind.” He said the cache of weapons was meant to be “defensive” in case Trump called on the group to act.
His messages to supporters complaining that Vice President Mike Pence would not back Trump, his open letters to the then president, “were nothing more than free speech and bravado,” Linder said.
David Fischer, an attorney for Caldwell, said the group has Quick Reaction Forces for many of their events and “the real reason they had QRF in Virginia was because its legal to have weapons in Virginia.”
“They didn’t bring weapons into DC because it’s illegal to have them in D.C.,” he said.
But the government dismissed that.
“Each of them drove rather than flew to the D.C. area so they could bring their weapons of war with them,” Nestler said.
The government’s opening arguments reviewed a number of the communications between members of the group, repeatedly noting the “we” language to solidify the coordination necessary for the seditious conspiracy charge, which requires “two or more people.”
Rhodes had studied the Serbian civil war, crafting a list of takeaways for the group: getting people to swarm the streets, gathering millions at the Capitol, encouraging military and police to align with the people in the streets and storming “parliament.”
As Jan. 6 neared, he noted that it was important to talk about their plans in the context of waiting on Trump to call upon them, something he said would give them “legal cover.”
In December, Meggs sent a Facebook message to those in Florida, saying “it’s easy to chat here. The question is who is willing to die. The time for talk is over.”
The real plan, Nestler said, was to “fight against the government no matter what.”
But in the days after the attack Rhodes instructed Oath Keepers members to delete any evidence from their phones or social media platforms that could incriminate them.
“You all need to delete any of your comments regarding who did what,” Rhodes wrote on Jan. 8.
“Do not chat about Oath Keepers members doing anything at the capital. Go dark on that. Do not discuss….Let me put it in infantry speak: shut the f–k up.”
The trial began Monday with Judge Amit Mehta dismissing complaints from some of the defendants’ attorneys about the jurors, including a motion seeking a change of venue for the trial.
“None-zero percent,” said they had such strong views they could not be fair and impartial, Mehta said.
“My sense is this is a very diligent group of citizens who will abide by the court’s instructions.”
Updated at 5:19 p.m.