Beyond the question of guilt or innocence for the individual defendants, the trial is likely to raise the curtain on an untested legal question — whether an extremist group like the Oath Keepers acting as an “unorganized militia” can exercise force as the “personal army” for an authoritarian president like Donald Trump who might consider invoking the Insurrection Act as a ploy to cling to power.
“They were hoping to have the militia go in and perform the violent coup to force Trump’s will to steal the election and end our democracy on Jan. 6,” said Kristofer Goldsmith, an Iraq combat veteran who is the CEO of Task Force Butler Institute, a veterans organization fighting extremism. “That was their objective. That’s why they had their quick reaction force with all their weapons in Virginia. They believed Trump was going to deputize them as his personal militia.”
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Rhodes’ attorneys are mounting a bold strategy to defend the Oath Keepers against the government’s allegation that the alleged co-conspirators planned to stop the lawful transfer of presidential power through a deployment of force on Jan. 6. In a memo outlining their case filed last month, Rhodes lawyers argued that the Oath Keepers “were simply acting in anticipation of what would have been lawfully given orders under the Insurrection Act.”
Rather than being a conspiracy to oppose federal law, as the government contends, Rhodes’ lawyers claim the Oath Keepers’ actions in DC on Jan. 6 were “actually lobbying and preparation for the president to utilize a United States law.”
Rhodes’ lawyers are asking Judge Amit Mehta to allow them to argue that the government’s claim of criminal intent on the Oath Keepers’ part “was negated by their reasonable reliance on Trump’s real but unexercised authority under the Insurrection Act.”
The government, in turn, is asking Judge Mehta to limit what the defendants can say during opening statements and cross-examination of government witnesses about the Insurrection Act.
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Elizabeth Goitein and Joseph Nunn, respectively the senior director of the Liberty & National Security Program and a lawyer at the Brennan Center for Justice at NYU, laid out the perils of how Trump or a future president with authoritarian designs could abuse the Insurrection Act in a statement submitted last month to the House Select Committee to Investigate the Jan. 6 Attack on the US Capitol.
Goitein told Raw Story that the Insurrection Act provides the president with “a frighteningly broad authority,” although it’s not without limits.
“Once the attack was underway, it’s possible Trump could have invoked the act to shut down the US Capitol and prevent the certification of the election on the pretext of keeping the peace,” she said. “It would be a grotesque abuse of power.
“The irony of him shutting down Congress with the Insurrection Act is that it was an insurrection,” Goitein added. “The Insurrection Act is for insurrections. Any other president would have been perfectly justified in invoking the Insurrection Act. This particular president would have had an ulterior motive. The problem is whether the courts would have felt empowered to probe that ulterior motive.”
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Goitein said that while the law sets out “vague and broad” criteria for deployment, which are entirely subject to interpretation by the president, the Supreme Court has hinted at a possible exception for “bad-faith invocations.” But such an action on the part of Trump, should become president again in 2025 — or another president with authoritarian designs — would put the courts in uncharted territory.
“We’ve never actually seen that play out in the case law,” Goitein said.
‘He can call us up right now and put us to work’
James Lee Bright, one of Rhodes’ lawyers, told Judge Mehta during a pretrial conference last month that the defendants wouldn’t need to be part of the National Guard or “a state-sanctioned militia” in order to be called up as a militia by the president. To support his position, he cited the Supreme Court’s 2007 District of Columbia v. Heller decision. In that decision, the high court ruled that based on the Second Amendment, the District of Columbia could not prevent a resident who was a special policeman from keeping a registered firearm in his home.
Justice Antonin Scalia, who authored the majority opinion, wrote that the “militia” as referenced in the Second Amendment’s prefatory clause — “a well-regulated militia being necessary to the security of a free state” — is “comprised of all males physically capable of acting in concert for the common defense.”
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Scalia reasoned: “The Antifederalists feared that the federal government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress the power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved.”
While raising alarms about the way the Insurrection Act could be abused, Goitein and Nunn acknowledged in their statement to the Jan. 6 committee that the Oath Keepers defendants fit the definition of an unorganized militia. Congress has defined “militia” to included “all able-bodied males” between the ages of 17 and 45, Goitein and Nunn wrote. As such, they said, “a substantial portion of white supremacists organizations’ members would likely meet that definition.”
Rhodes repeatedly alluded to the “able-bodied males” definition of the militia in the runup to Jan. 6. On the eve of the attack, he joined Veterans for Trump cofounder Joshua Macias, Latinos for Trump President Bianca Gracia and Oath Keepers general counsel Kellye SoRelle for a Facebook livestream hosted by Virginia state Sen. Amanda Chase. Following Macias’ declaration that “there are veterans out there that are well trained that can be brought in as a special group and can be utilized in any way, shape or form at his disposal,” Rhodes concurred.
“Yeah, in fact, us veterans until age 65, under federal statute, are still subject to being called up as a militia,” he said. “That goes for seventeen to forty-five if you’re not a veteran. If you’re a veteran, because of our prior experience and training, it goes to age sixty-five. [Trump] can call us up right now and put us to work.”
The defendants are relying on a highly technical distinction to argue that they were authorized to act as a militia under the command of President Trump were he to invoke the Insurrection Act. They argue not that the Oath Keepers as an organization was a militia, but that they as individual citizens were part of the militia. In a motion filed on Sept. 27, Bright and co-counsel Phillip Linder asked the court to bar the government from using the terms “militia,” “organized militia,” “anti-government” and “extremists,” arguing that they will prejudice and confuse the jury.
“Falsely referring to the Oath Keepers as a ‘militia’ would obscure the true meaning of that term, which comprises an important part of the defense,” the two lawyers wrote.
Judge Mehta has expressed skepticism towards the Oath Keepers’ argument, but as of publication has not ruled on whether they will be allowed to raise the Insurrection Act as a defense before the jury.
“Any belief that a privately formed militia thinks it can be called up in response to the Insurrection Act is just plain wrong,” he said during a pretrial conference on Sept. 14. “That would still constitute a use of force against the authority of the United States.
“I don’t think the defendants can come into a trial and come up with some outlandish understanding of the law,” the judge added. “Ignorance of the law is not a defense, except for certain crimes like tax evasion and obstruction.”
The government is arguing that the president’s powers under the Insurrection Act are irrelevant to the Oath Keepers case, and the defendants shouldn’t be allowed to argue that they had no criminal intent simply based on their anticipation that they would receive a lawful order.
The government’s lawyers seized on a claim in Rhodes’ memorandum that “in response to what he perceived as a conspiracy to deprive a class of persons in several states of their voting rights, Trump could have invoked the militia.”
Ridiculing the proposition, the government’s lawyers wrote, “To take Rhodes’ apparent example, roving militias could have patrolled the polling places and intimidated voters during the 2020 presidential election because those militias could have anticipated that the president might have ‘invoked’ them or ‘taken such measures as ‘the president ‘consider[ed] necessary.”
A campaign bristling with calls for the Insurrection Act
Rhodes issued repeated calls for Trump to invoke the Insurrection Act in the runup to Jan. 6, but he wasn’t alone. Within the infrastructure of the movement to overturn the 2020 election, prominent members of the coalition raised the same call.
During an interview with conspiracy trafficker Alex Jones two months before the election, Roger Stone, a political consultant and longtime friend of Trump’s, cited widely debunked claims of fraud around early voting to argue that Trump should consider invoking the Insurrection Act, and that he should arrest the Clintons, former Senate Majority Leader Harry Reid, Facebook cofounder Mark Zuckerberg, Tim Cook of Apple, and “anybody else who can be proven to be involved in illegal activity.”
Support for martial law among Trump’s supporters had already been seeded as early as May 2020 when “a Q-drop — the name for the mysterious missives allegedly from a person at the center of the QAnon movement — floated the Insurrection Act for the first time as a way to solve ‘growing unrest’ after George Floyd was killed by Minnesota police,” Politico reported.
And even before retired Lt. General Michael Flynn, Trump’s former national security advisor, urged the president to use the National Guard to seize voting machines during a Dec. 18, 2020 meeting at the White House, he was promoting the Insurrection Act.
In early December 2020, Flynn tweeted out an ad calling on Trump to declare martial law and temporarily suspend the Constitution and civilian control of the elections, and have the military oversee a new election.
Following the Jan. 6 attack, election denier Mike Lindell visited Trump in the White House, and a photograph captured by a Washington Post photographer showed Lindell holding notes that mentioned invoking the Insurrection Act, according to a report by the New York Times.
Observers say that had Trump acted on the advice, the result would have been catastrophic.
“Had Trump sent out a tweet saying he was invoking the Insurrection Act and said he was calling upon ‘Second Amendment militias,’ I think we would have seen an unfathomable amount of bloodshed and a real end to our democracy,” Goldsmith told Raw Story.
Goitein and Nunn with the Brennan Center said in their statement to the Jan. 6 committee: “The invocation of the Insurrection Act could have thrown the transition into chaos and disarray, further weakening public confidence in the election and our democratic process more broadly. Worse, deployment of US forces to the US Capitol, under the command and control of a president whose interests were aligned with the insurgents, could have fanned the flames of violence that erupted that day rather than quelling it. In the subsequent days, the use of troops to prevent certification of the vote would likely have prompted mass protests by supporters of democracy, creating the potential for violent confrontations with federal troops who would no doubt be under orders to respond aggressively.”
Goitein told Raw Story that deploying a group like the Oath Keepers as an “unorganized militia” alongside the National Guard under invocation of the Insurrection Act would be “nightmarish” and a “disaster.”
“Think how little you can expect from private militias when it comes to the imperative to respect and safeguard the rights of those who are on the other side of the deployment,” she said.
Whether the Oath Keepers are able to argue in court that their actions were immunized by their anticipation that Trump would call them to service under the Insurrection Act may not ultimately matter.
In its memorandum opposing discussion of the Insurrection Act, the government cited at least four statements by Rhodes calling for force to prevent the transfer of presidential power, and four additional statements indicating that the Oath Keepers “would act, with or without the president’s bidding.”
And the government argues that Rhodes’ words during a Nov. 9, 2020 GoToMeeting chat show that the reason he hoped Trump would invoke the Insurrection Act was to provide “legal cover” to the Oath Keepers.
“The QRF will be awaiting the president’s orders,” Rhodes said during the chat. “That’s our official position. And the reason why we have to do it that way is because that gives you legal cover.
“You guys gotta have discipline,” he said. “Don’t make it easy for them to pop you with a conspiracy charge and do you like they did those guys in Michigan because they got them hot in the collar, probably after a few beers, and got them talking smack.”
In their statement to the Jan. 6 committee, Goitein and Nunn warned: “The vague and broad criteria for invoking the Act, combined with the lack of any provision for judicial or congressional review, render it ripe for abuse in ways that could directly threaten democracy.”
Goldsmith said he foresees that if Trump becomes president again in 2025, he and his allies will fold the Oath Keepers and other groups like it into a security apparatus akin to the brown shirts, the feared paramilitary group attached to the Nazi Party in pre-World War II Germany.
“On Jan. 20, 2025, Trump could immediately invoke the Insurrection Act and run what in his mind is a revenge campaign against perceived enemies and those who slighted him,” Goldsmith said. “And our republic would cease to exist, and we would be a fascist state, unless the Capitol police and the United States military were prepared and willing to fend off a violent insurrection. They would be the last line of defense.”
