The Oath Keepers are using the 'we were just kidding' white privilege defense

Jason Dolan was ready to die. As he texted his fellow Oath Keepers in the days before the January 6 attack on the Capitol, there was "no coming back" from what he planned to do, and he would be "lucky" if he got "a bullet" that day. "I think my biggest trouble is trying to convince myself to say good bye to my family," he wrote, having convinced himself that it was necessary to die to overturn the results of the 2020 election.

Dolan did not die. Instead, he's turned state's witness in the prosecution of five of his fellow Oath Keepers, who are currently on trial. During his live testimony last week, Dolan, who already pleaded guilty to conspiracy, told the jury he "literally" meant those maudlin texts when he wrote them. Describing his thought process, he said he asked himself, "Is this all just going to be talk, or am I willing to back up my words with actions?"

That Dolan meant to storm the Capitol on January 6 seems, to most outside observers, self-evident. He was, after all, there that day, acting on weeks of planning his right wing paramilitary group had engaged in. But there's a reason the prosecution prompted Dolan to explain how deadly serious he was about this "overthrowing the government" business. The people he's testifying against, including Oath Keepers leader Stewart Rhodes, are defending themselves by claiming their copious plotting was more fantasy role-play than a serious plan of action.

"Oath Keepers defense attorneys have contended that despite the tough talk in private messages, the group was primarily in Washington D.C. to act as security details for VIPs at a pro-Trump rally, and had no plan to enter the Capitol," Kyle Cheney, who has been covering the trial for Politico, wrote last week.

When faced with text messages showing the plan was to force Congress to invalidate President Joe Biden's electoral win, defense attorneys argue it was just "macho" talk, reports Brandi Buchman of Daily Kos, who has been watching the trial daily.

The defendants are charged not just with trespassing or trying to obstruct an official proceeding, like so many of the insurrectionists before them. They are facing the more serious charges of seditious conspiracy, so the extent of serious planning matters. To prove the charges, the prosecutor needs to show not just that the defendants stormed the Capitol, but that they conspired together to overthrow the government. The defense wants to convince the jury that the Oath Keepers happened to be in Washington D.C. for reasons other than insurrection, arguing that they only stormed the Capitol because they got swept up in the moment.

They're arguing against a mountain of evidence that the operation was planned. Rhodes, a Yale-educated lawyer, understood that seditious conspiracy was a possible charge. And yet despite his warning to fellow Oath Keepers to speak in coded language, seditious intent appears to leak into their messages anyway. In one text, Rhodes wrote, "we will have to rise up in insurrection (rebllion) [sic] against the ChiCom puppet Biden."

They said the thing and did the thing, so it seems like the prosecution would have an open-and-shut case, right? But there's a good reason the defense thinks an "it was just talk" argument will work. Conservative white people generally get a generous benefit of the doubt when it comes to determining whether they really mean the terrible things they say. Like Donald Trump dismissing it as "locker room talk" when he was caught bragging about sexual assault, the presumption of innocence for conservative white people is so robust it's often extended even in the face of overwhelming evidence.

Evidence uncovered by both the January 6 committee and the various federal prosecutions of insurrectionists has demonstrated this. Both the FBI and the Secret Service received tips in the weeks before the insurrection, indicating there were people planning to storm the Capitol, but those tips were ignored. During the Oath Keepers trial, prosecutors revealed the FBI was specifically tipped off about this particular alleged conspiracy, but that tip was also ignored. While there may have been more sinister reasons for the Secret Service to blow off the tips, mostly it seems that law enforcement was oblivious. They simply didn't take seriously the possibility that all this online chatter was building toward real violence. They assumed people were just playing around.

"[I]t's hard to get Congress, police, anybody affected by extremism to take this seriously," Andy Campbell, author of "We Are Proud Boys: How a Right-Wing Street Gang Ushered in a New Era of American Extremism," told Salon last month. "Department of Homeland Security officials said that they thought the Proud Boys were just a drinking club," he explained— until, at least, the Proud Boys led a massive group of insurrectionists into the Capitol.

Even now, Republican leaders and conservative pundits fall back on the "just kidding around" arguments to downplay the seriousness of both Trump's attempted coup and the violence of January 6, claiming it was "forgettably minor" and waving it off as a protest that merely got a little rowdy.

To get an idea of how deeply ingrained this white conservative presumption of innocence is, check out a recent, lengthy article for Esquire about the plot to kidnap and murder Michigan Gov. Gretchen Whitmer. In it, journalist Chris Heath recasts the accused conspirators as a bunch of goobers who didn't mean any real harm. While repeatedly admitting that the FBI had a large number of text messages and testimony to establish that these men were plotting a serious crime, Heath keeps circling around to the idea that, in the end, they were just fooling.

Heath argues that the use of FBI informants and undercover agents to expose the plot is why he's skeptical of the government's case. But it's also hard not to miss how he gets sucked into the white-guyness of the alleged conspirators. He is another white guy, and he sees himself in them. "I somehow felt like I recognized something fundamental about who this guy was," he says of one of the accused, calling him "sincere, open, thoughtful, and curious." This is the same man, Brandon Caserta, who was recorded saying, "The fear will be manifested through bullets." Esquire includes a photo of another man, Daniel Harris, cuddling a puppy. Harris, on the recording: "Knock on the door, and when she answers it just cap her." Heath writes of how another defendant, Barry Croft, enjoyed "a family get-together with food, swimming." Croft, on tape: "A quick, precise grab on that fucking governor. And all you're going to end up having to possibly take out is her armed guard."

Heath portrays these men as victims of social prejudice, pointing to anonymous commenters online mocking the men's appearance. But oodles of social science suggest the opposite is true: that white men get the benefit of the doubt not extended to other people accused of similar crimes. As the Sentencing Project has carefully documented, "African Americans are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, and they are more likely to experience lengthy prison sentences." This is true, even when you control for the likelihood of having committed a crime. For instance, drug use rates between white and Black Americans are the same, but Black people get arrested for possession at nearly four times the rate of white people.

I'm only singling Heath out because he wrote such a long and prominent piece for a major magazine. That he would write it and Esquire would publish it shows how truly ingrained this idea of white privilege is. White people, especially conservative white men, get away with so much because people are willing to write off their toxic behavior as mere braggadocio.

Trump, in particular, has benefited from this. As one anonymous Republican famously told the Washington Post on November 9, 2020, while speaking of Trump's claims that Biden stole the election: "What is the downside for humoring [Trump] for this little bit of time?"

The anonymous Republican then added, "It's not like he's plotting how to prevent Joe Biden from taking power on Jan. 20."