Judgment day for Stewart Rhodes and the Oath Keepers

The government case charging Stewart Rhodes, founder and leader of the Oath Keepers militia, and four co-defendants of seditious conspiracy for their role in the deadly Jan. 6 insurrection is not a slam dunk.

But with the case now before a jury after 29 days of testimony in a Federal District Court a short walk from where Trump supporters rioted at the U.S. Capitol nearly two years ago, there is good reason to believe that Rhodes and the others may be found guilty of sedition, which carries a sentence of up to 20 years in prison.

The Oath Keepers trial is the highest profile federal case against insurrectionists. It’s the first trial involving an extremist organization that joined forces with former President Trump. Prior to this, the government has prosecuted or struck plea deals with hundreds of the 955 individuals charged so far in the failed coup incited by Trump.

Charging the Oath Keepers with the rarely used seditious conspiracy was seen as a gamble. The government must convince jurors not only did militia members conspire to stop the legal transfer of power to President Joe Biden, they also must have used force. The last time the feds charged far-right extremists with seditious conspiracy, they were left with egg on their face. In 2012, a judge threw out sedition charges against five members of the far-right Hutaree militia, saying evidence they were plotting an anti-government war was “utterly short on specifics.”

That case seems to have shaped the prosecution and defense strategy in the Oath Keepers trial. The crux of the Oath Keepers defense was they lacked a specific plan to assault the Capitol on Jan. 6. Similar to how counsel for the Hutaree militia said their talk may have been “highly offensive,” but it was protected political speech, lawyers for the Oath Keepers called their talk of violence “horribly heated rhetoric,” but not illegal or evidence of any conspiracy.

But there is a big difference in the Oath Keepers case. The government presented detailed evidence of a violent plot for Jan. 6. The defense could not dispute that dozens of Oath Keepers joined the insurrection, including two stacks that breached the Capitol. Prosecutors built a strong case using video from the assault, encrypted messages from accused conspirators, the testimony of Oath Keepers who struck plea deals in exchange for serving as cooperating witnesses, and Rhodes' own words endorsing violence against the government.

The government described Oath Keepers training before Jan. 6 for “unconventional warfare,” “hasty ambushes,” and to be “fighting fit” by inauguration day. It counted about $40,000 that Rhodes spent on rifles, ammunition, and weapons accessories before and after the insurrection. Those weapons were among an Oath Keepers arsenal in Virginia guarded by a Quick Reaction Force designated to ferry “heavy weapons,” possibly by boat across the Potomac River, to D.C. if needed.

During the trial, Rhodes tried to dismiss his talk as Boomer bravado and drunken bluster, but the government case undercut claims of being keyboard warriors ranting on the internet. Rhodes recruited dozens of Oath Keepers for the assault on the Capitol. One Oath Keeper who testified said of their weapons cache “I had not seen that many weapons in one location since I was in the military.”

Damaging testimony came from Oath Keepers who took plea deals. Graydon Young, an Oath Keeper from Florida, who joined a crowd of Trump supporters on Jan. 6 fighting with police defending Senate chambers inside the Capitol, told the jury, “I felt like it was a ‘Bastille-type’ moment in history, like in the French Revolution. … I guess I was acting like a traitor, someone acting against my own government.”

Oath Keeper Josh Dolan, a 19-year Marine veteran, talked of the plotting and his violent mindset leading up to Jan. 6. “I helped coordinate. I helped plan. I helped set up. I helped drive up to D.C. I talked about my desire … [of] wanting to stop what I saw as an illegitimate government — or not duly-elected government — from taking power.”

Dolan said while at the Capitol, he wanted Congress members “to stop what they were doing. I wanted them to be afraid of me.” Dolan said before Jan. 6 he thought about how far he was willing to go and he accepted it could mean prison, treason, or “a bullet.”

The star witness for the prosecution was Stewart Rhodes himself.

Rhodes claimed everything he did was legal and only in anticipation of Trump invoking the Insurrection Act. But the government sought to make him collateral damage from his own outbursts.

Prosecutors introduced many of Rhodes’ violent threats mined from seized cell phones.

On Nov. 5, 2020, two days after the election, before Biden was declared president, Rhodes wrote, “We are not getting through this without a civil war. Prepare your mind, body and spirit.”

On Dec. 11, Rhodes wrote to Oath Keepers leadership in a Signal chat, “It will be a bloody and desperate fight. We are going to have a fight. That can't be avoided.”

On December 14, Rhodes texted Oath Keepers from Alabama and Georgia. Calling Biden a “ChiCom puppet’” — Chinese Communist — Rhodes wrote, “They captured nearly every level and branch of power. Without consequences. They think they have it all figured out. But we armed Americans have one good trick left up our sleeve.”

Referring to a 78-year-old American colonist who killed three British soldiers during the Revolutionary War, Rhodes wrote, “May there be ten thousand Samuel Whittemores and a thousand Bunker Hills (where we also made the Red Coats pay dearly).”

On Dec. 20, Rhodes wrote, “Either Trump gets off his ass and uses the Insurrection Act to defeat the ChiCom puppet coup or we will have to rise up in insurrection (rebellion) against the ChiCom puppet Biden. Take your pick.”

He followed it up on Dec. 29, “They don’t give a shit how many show up and wave a sign, pray or yell. They won’t fear us until we come with rifles in hand.”

On Dec. 31 Rhodes wrote, “There is no standard political or legal way out of this.”

Days after the insurrection, Rhodes was still threatening violence. Prosecutors played a secretly recorded clip of Rhodes from Jan. 10. Speaking of Trump, Rhodes said “If he’s not going to do the right thing, and he’s just going to let himself be removed illegally, then we should have brought rifles. We could have fixed it right then and there. I’d hang f**king Pelosi from the lamppost.”

The defense team’s argument boiled down to “there was no plan.” They told the jury. “Did you find a plan to storm the Capitol? No. Did you find a plan to breach the Rotunda? No. Did you find a plan to stop the certification of the election? No.”

When questioned by defense lawyers, Young, the Florida Oath Keeper, conceded, “There was no specific plan … to breach the doors of the Capitol.”

Defense lawyers told jurors because not one of the 50 witnesses could point to any such plans, they should acquit Rhodes and his co-defendants of the conspiracy charges.

The flaw in the Oath Keepers' defense is there doesn’t need to be a detailed plan to convict them of seditious conspiracy. The jury only needs find a “meeting of the minds.”

Toward that end, Young said he conspired to stop the transfer of power even if the Oath Keepers didn’t have the details worked out. “I participated in a conspiracy to obstruct Congress. … We were going to disrupt Congress, wherever they were meeting.”

He said, “I felt like it was common sense. We talked about doing something about fraud in the election when we got there on the sixth, and when crowds went over the barricades into the building, the opportunity presented itself to do something.”

Stewart Rhodes also proved to be his own worst enemy by choosing to testify. Having shot out his left eye in 1993, which his estranged wife Tasha Adams speculates was a drug deal gone wrong, Rhodes shot himself in the foot on the witness stand.

Before the trial began Adams said, “Stewart believes as long as he’s in front of any audience, he can sway them. He thinks he has mystical powers.”

But those mystical powers failed him. He credibility appeared shaky by throwing other Oath Keepers under the bus, blaming them for the violence on Jan. 6 despite his enthusiasm for it. He denied knowing of the Quick Reaction Force despite sending messages saying, “We WILL have a QRF. The situation calls for it.”

Among the five charges Rhodes is facing is tampering with evidence for texting others after Jan. 6 to delete messages. That order came from Rhodes phone. But he blamed his girlfriend Kellye SoRelle, the general counsel for the Oath Keepers who has been separately indicted as a Jan. 6 conspirator, for sending the instructions on his phone to delete text messages.

Perhaps Rhodes' lowest moment was when he said he was hoping to avoid conflict on Jan. 6 but believed civil war might break out after Biden was inaugurated. As the Lawfare website pointed out, which covered the trial, the prosecutor pounced on his statement. In effect, Rhodes was conceding he was intent on sedition, waging war against the government. He was only quibbling over the date.

The jury is a wildcard, however.

Hanging over the Oath Keepers' trial is the government’s failure to convict Ammon and Ryan Bundy in their armed takeover of the Malheur National Wildlife Refuge in 2016. The brothers were acquitted after the jury allegedly demanded an absurd level of proof to convict them of conspiracy in the takeover.

If Rhodes and the others are acquitted of sedition, it will be another example of how the legal system gives far-right extremists leeway that few other groups enjoy.

But, if Rhodes is found guilty, the government will finally have taken a small step in holding accountable those who tried to over throw the constitutional order.