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Insurrection Act was just 'legal cover' for Oath Keepers' real Jan. 6 plan, prosecutors say in trial opener

Oath Keepers founder Stewart Rhodes and four associates began trial Monday on a slew of charges stemming from the Capitol riot, including seditious conspiracy.

WASHINGTON — Oath Keepers founder Stewart Rhodes was like a “general overlooking a battlefield” on Jan. 6, prosecutors told a jury Monday during opening arguments for the government’s largest and most complex case to date stemming from the Capitol riot.

Rhodes and four co-defendants – Thomas Caldwell, Kelly Meggs, Jessica Watkins and Kenneth Harrelson – face an expected six weeks of trial on a slew of criminal charges, including three separate conspiracy counts alleging they plotted to impede members of Congress, disrupt the joint session on Jan. 6 and, in the case of the seditious conspiracy charge, to forcibly hinder or delay the execution of laws governing the transfer of presidential power.

If convicted of the most serious counts against them, each defendant would likely face lengthy prison sentences. However, conviction on the most serious conspiracy counts was far from guaranteed.  Last month a federal judge acquitted two Capitol riot defendants of the obstruction of an official proceeding counts against them, even while convicting them on other felony charges, saying the government had failed to prove their intent on Jan. 6 beyond a reasonable doubt. And the Justice Department has a less-than-stellar track record on seditious conspiracy charges. The government’s most recent prosecution on the charge, a 2010 case against of members of the Christian Patriot militia group the Hutaree, ended with a judge acquitting seven defendants of seditious conspiracy.

Jurors heard opening statements Monday from the government and three defendants: Rhodes, Caldwell and Watkins. The two remaining defendants, Harrelson and Meggs, chose to reserve their opening statements until after the government closes its case. Below, find summaries of each party’s statement:

The Prosecution

Assistant U.S. attorney Jeffrey Nestler laid out the consequences of Jan. 6 early on for jurors. It represented, he said, both a constitutionally mandated function and, until last year, an unbroken tradition of the peaceful transfer of power. That was what Oath Keepers conspired to oppose following the 2020 election, Nestler said.

“These defendants concocted a plan for an armed rebellion to shatter a bedrock of American democracy,” Nestler said. “They banded together to do whatever was necessary, up to and including force, to stop the transfer of power from President Donald Trump to President-Elect Joe Biden on Jan. 6, 2021.”

Nestler painted an image of Rhodes, who founded the Oath Keepers in 2009, as a sophisticated, Yale-educated former paratrooper who used his military service and his “impressive pedigree” to recruit others to his organization. Rhodes sometimes spoke in code, Nestler said, and used others phones to send messages in an effort to avoid tying communications back to himself. On Jan. 6, according to Nestler, Rhodes “stood like a general overlooking a battlefield” as a conflict prosecutors said he’d encouraged for months came to pass.

Prosecutors played for jurors video of a speech Rhodes gave in D.C. on Dec. 12, 2020, in which he urged Trump to invoke the Insurrection Act and said, “If he does not do it now, while he is commander in chief, we are going to have to do it ourselves later in a much more desperate, much more bloody war.”

On Jan. 6, after realizing Trump was not going to call up the military and militia, prosecutors said Rhodes sent his fellow Oath Keepers another message: “I see no intent by him to do anything. So the patriots are taking it into their own hands.”

In one of the few pieces of new material presented Monday, prosecutors also played a recording from Jan. 10, 2021, they said was captured by an associate of Rhodes’ who’d become concerned about his actions. In the clip, Rhodes can be heard saying about Jan. 6: “My only regret is that they should have brought rifles.”

Nestler also attempted to get out ahead of Rhodes’ primary defense argument, showing jurors messages from Rhodes about using the Insurrection Act as their public story ahead of Jan. 6.

“They used a code, or shorthand: the Insurrection Act,” Nestler said. “According to Rhodes, using those words, the Insurrection Act, would give him and his followers plausible deniability. Rhodes said using those words would give them legal cover.”

Stewart Rhodes

Rhodes is being represented in the case by three attorneys: Phillip Linder, James Lee Bright and Ed Tarpley. Linder handled the opening statement for their client Monday, telling promising jurors the defense would spend the next six weeks “filling in the gaps” of the hundreds of text messages and the hours of videos he expected prosecutors would show them.

“Even though it may look inflammatory, they did nothing illegal,” Linder said.

Linder didn’t address Rhodes’ public calls for civil war or “bloody revolution” in the wake of the 2020 election. Rather, he described his client as “extremely patriotic” and a “constitutional expert” who genuinely believed Trump was going to invoke the Insurrection Act on Jan. 6 and call upon the Oath Keepers and other militia groups to defend the Republic.

Credit: Susan Walsh / Associated Press
Stewart Rhodes, founder and leader of the Oath Keepers, speaks at a rally outside the White House in 2017.

The Insurrection Act is an 1807 law that empowers the president, in specific circumstances, to deploy the military and militia to suppress civil disorder, insurrection or rebellion. The Supreme Court defined the country’s “militia” in the landmark D.C. v. Heller case as “all males physically capable of acting in concert for the common defense” – a definition Rhodes claims grounded his understanding of the Insurrection Act.

“Stewart’s good-faith reliance on that is why he did what he did,” Linder said. “They were ready to react to President Trump’s request. That’s what you’re going to hear.”

Linder also denied there was any plan from Rhodes or the Oath Keepers to attack Congress on Jan. 6, and said jurors would see evidence that would rebut claims to the contrary from Oath Keepers who’ve pleaded guilty.

Thomas Caldwell

Before the case against the Oath Keepers was styled U.S. v. Stewart Rhodes et al, it was titled U.S. v. Thomas Caldwell et al – something Caldwell’s attorney, David Fischer, repeatedly hammered during a fiery opening statement accusing the government of a “bait and switch.”

Fischer accused the government of sensationalizing claims against his client, who, he told jurors, was a 100% service-related disabled veteran of the Navy who had previously worked for a brief time with the FBI. He also said there was nothing nefarious about the “quick reaction force” (QRF) Caldwell is accused of organizing at a hotel in Virginia just outside of D.C. Prosecutors have claimed in court filings the QRF was armed with guns and was ready to reinforce Oath Keepers at the Capitol if Trump invoked the Insurrection Act. Fischer said Oath Keepers had used QRFs at events around the country and their purpose was to rescue members should violence break out.

“Where is the single, solitary human being who will take the witness stand and say the Oath Keepers had a plan to attack the U.S. Capitol with the QRF?” Fischer asked.

Credit: Justice Department
Oath Keeper Thomas Caldwell pictured outside the U.S. Capitol on January 6, 2021.

Fischer downplayed a pre-Jan. 6 reconnaissance tour of the Capitol undertaken by Caldwell, dismissing it as a group of senior citizens who were worried about toilet access, and said Caldwell was only able to make it to the restricted Lower West Terrace on the day of the riot because he had taken too much of his prescribed oxymorphone.

In court filings, prosecutors have accused Caldwell of taking credit in electronic messages for leading the charge. In one such message, prosecutors said, Caldwell claimed after hearing former Vice President Mike Pence was going to certify the election he “grabbed up my American flag and said let’s take the damn Capitol.”

“So people started surging forward and climbing the scaffolding outside, so I said let’s storm the place and hang the traitors,” Caldwell allegedly wrote. “Everybody thought that was a good idea so we did.”

All of that, Fischer said bluntly, was just bluster.

“Mr. Caldwell couldn’t storm his way out of a paper bag, ladies and gentlemen,” he said.

Fischer said he didn’t plan on returning in six weeks to ask for mercy.

“I’m not going to come before you six weeks from now begging you to find a reasonable doubt for Mr. Caldwell,” he said. “I came here to clear his name. What’s happening here is an absolute outrage.”

Jessica Watkins

Defense attorney Jonathan Crisp described Watkins as an “enigma” – someone who struggled with an early release from the Army for unspecified reasons and a general feeling she didn’t belong. Part of that, Crisp said, was Watkins’ identity as a transgender woman.

Watkins reportedly first became aware of Rhodes from an appearance he made on the far-right conspiracy theory website InfoWars. She eventually joined the Oath Keepers and founded her own sub-group called the Ohio State Regular Militia, although Crisp said she never met Rhodes before or after Jan. 6.

Instead, Crisp said, Watkins was a “protest junkie.” She had found work s a medica after leaving the Army and looked for any reason to work security at protests and, ultimately, Jan. 6.

Credit: Department of Justice
Oath Keeper Jessica Watkins poses with another militia member in the U.S. Capitol on January 6.

Prosecutors have accused Watkins of actively recruiting militia members ahead of Jan. 6, including another Oath Keeper charged in the riot, Donovan Crowl. During the trial, jurors will also hear significant portions of a chat Watkins participated using the Zello walkie-talkie app in which she described the Oath Keepers “sticking to the plan” and bringing a “shop vac” to the Capitol on Jan. 6. Crisp acknowledge Watkins’ statements about recruiting people ahead of Jan. 6 sounded “ominous as hell,” but suggested the way the government was presenting both them and the Zello chat were out of context.

“You can take a lot of things, cut and paste with old magazine letters, and make it say anything you want,” he said.

Like Fischer, Crisp also attacked the government’s framing of the Oath Keepers’ quick reaction force. He said it was a “condition precedent” unit that hinged entirely on Trump invoking the Insurrection Act.

“But that never happened,” he said. “They hoped it would, for their own various reasons.”

Crisp acknowledged Watkins was one of the Oath Keepers who entered the Capitol in a military-style stack, but downplayed her role in the overall conflict that day.

“She wasn’t the vanguard,” he said. “They’re not the leaders of what happened that day. They’re not the ones who breached the Capitol.”

At the end of the trial, Crisp said, he believed the jury would return a not guilty verdict for Watkins.

“I don’t think you’ll be proud of her or give her a medal, but I do believe you’ll find her not guilty of everything the government says she did,” he said.

WUSA9 reporter Jordan Fischer will be in court throughout the trial providing daily coverage. Follow him on Twitter at @JordanOnRecord and subscribe to our weekly newsletter “Capitol Breach” for all the latest Jan. 6 coverage.

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