Opening arguments to begin in sedition trial of Oath Keepers leader, rioters over Jan. 6

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After three days of jury selection, opening arguments are set to begin next week in the trial of Stewart Rhodes, the head of the Oath Keepers militia group, which helped lead the violent efforts to enter the U.S. Capitol on Jan. 6, 2021.

Also on trial are four other Jan. 6 rioters linked to Rhodes and the Oath Keepers, all of whom face trial on charges that include seditious conspiracy, a serious and politically controversial charge rarely used by federal prosecutors.

During the Jan. 6 attack on the Capitol, prosecutors allege that at least three of the Oath Keepers who are on trial participated in what now has become a notorious military-style "stack" formation that confronted police officers guarding the Capitol and ultimately succeeded in gaining the defendants entry into the building.

Court documents filed by prosecutors say that as part of their conspiracy, Rhodes and his co-conspirators "repeatedly made statements that demonstrated an agreement to oppose the lawful transfer of presidential power [from outgoing President Donald Trump to newly elected Joe Biden] by force."

Oath Keepers founder Stewart Rhodes, with eye patch, is seen on video at a hearing, above the seated members of the House panel.
Stewart Rhodes, founder of the Oath Keepers, is projected on a screen at a hearing of the House Jan. 6 committee on June 9. (Jonathan Ernst/Reuters)

Prosecutors quote Rhodes telling his alleged co-conspirators two days after the Nov. 3, 2020, presidential election: "We MUST refuse to accept Biden as a legitimate winner....We aren't getting through this without a civil war. Too late for that. Prepare your mind, body, spirit."

Federal authorities say Rhodes told his associates that "storming" the U.S. Capitol building should be part of their plan and that he hoped Trump would declare "an insurrection and call up the National Guard into Federal service AND all us veterans and we will suppress the communist/deep state enemies."

On Nov. 9, 2020, less than a week after the election, investigators say Rhodes stated in a recorded meeting on the GoToMeeting website that a "Quick Reaction Force" — a SWAT-team-type group purportedly organized by would-be rioters — would be "awaiting the president's orders."

"The reason why we have to do it that way is because that gives you legal cover,” Rhodes allegedly said, according to court documents.

But investigators say he also declared repeatedly that his followers would act "with or without the President's bidding." On Christmas Day 2020, federal authorities say Rhodes told some supporters via Signal, an encrypted app, that Trump "needs to know that if he fails to act, then we will..."

Stewart Rhodes, wearing a black baseball cap saying Oath Keepers and black gloves, at the microphone, surrounded by supporters and with a photographer taking his picture in front of him.
Rhodes speaks during a Patriots Day Free Speech Rally in Berkeley, Calif., on April 15, 2017. (Reuters/Jim Urquhart)

Then, on New Year's Eve, Rhodes told a "leadership" chat group, "On the 6th, they are going to put the final nail in the coffin of this Republic, unless we fight our way out. With Trump (preferably) or without him, we have no choice."

By Jan. 5, according to investigators, the would-be rioters had brought weapons and ammunition to Washington and stored the materials at a hotel in the Virginia suburbs so it could be used by what Rhodes called a QRF, or Quick Reaction Force. Early on Jan. 6, Rhodes allegedly told fellow rioters that his group "Will have several well equipped QRFs outside DC. And there are many many others, from other groups, who will be watching and waiting on the outside in case of worst case scenarios."

Yet as the riot unfolded, Rhodes complained to followers, authorities said, that "Pence is doing nothing. As I predicted. ... All I see Trump doing is complaining. I see no intent by him to do anything. So the patriots are taking it into their own hands. They've had enough."

Even after Trump failed to invoke the Insurrection Act — an action that the Oath Keepers apparently believed could provide legal sanction for their efforts to block the certification of Biden's electoral victory — Rhodes, according to prosecutors, "urged his co-conspirators to continue the fight," telling them that "thousands of ticked off patriots spontaneously marched on the Capitol. ... You ain't seen nothing yet."

A man in a beige cowboy hat with a tall stick gets ready to batter his way through a door, as riot police in lime-green suits and protective helmets try to prevent a breach as rioters press in around them. Several other people stand by using their cellphones to record the scene.
Supporters of President Donald Trump battle with U.S. Capitol Police at the west entrance of the Capitol on Jan. 6, 2021. (Reuters/Stephanie Keith)

After the riot collapsed in the face of police action, and after Biden's victory in the Electoral College was formally certified, investigators say Rhodes continued to encourage resistance by his followers, making "thousands of dollars of purchases of firearms and related equipment.”

Even after concluding that it was "unlikely" that Trump would invoke the Insurrection Act to block Biden's accession to the White House, Rhodes urged "patriots" to "Prepare to walk the same path as the Founding Fathers of condemnation of an illegitimate regime, nullification/mass non-compliance, defiance, mutual defense and resistance."

Earlier this year, three members of the Oath Keepers initially facing seditious conspiracy charges — Joshua James, Brian Ulrich and William Wilson — subsequently acknowledged to the court that they had conspired with Rhodes and other Oath Keepers to oppose by force the lawful transfer of presidential power and pleaded guilty to seditious conspiracy charges.

On the steps of the Capitol, by an overturned barricade, a line of police tries to fend off rioters, one of whom is using an American flag on a 10-foot pole as a weapon.
Members of the Capitol Police try to fend off a mob as it tries to storm the Capitol on Jan. 6, 2021. (Reuters/Leah Millis)

But Rhodes and his four co-defendants, who include alleged Oath Keeper leaders from Ohio and Florida as well as the only defendant who is not being held in pretrial detention, a former U.S. Navy officer and FBI employee who denied belonging to the group, maintain their innocence and have prepared to go to trial.

As the trial approached, defendants made multiple efforts to delay or distract the proceedings, sometimes putting forward exotic legal arguments.

At one point, Rhodes's lawyers suggested they were likely to argue that their client believed that Trump was lawfully going to use the 1807 Insurrection Act, which allows the president to deploy military forces to quell a rebellion, to mobilize militia forces to help him cling to office.

"What the government contends was a conspiracy to oppose United States laws was actually lobbying and preparation for the president to utilize a United States law to take lawful action," two lawyers for Rhodes argued.

Shortly before the trial was due to begin, defense lawyers asked the judge to forbid prosecutors from using certain language during the trial to describe the defendants, including such terms as “anti-government,” “militia,” “organized militia,” “extremists,” “extremism,” “racist,” “racism,” “white supremacist” and/or “white nationalism.” (As of the time of publication, the court record did not indicate whether the judge had ruled on this request.)

Pro-Trump protesters break down barricades on the Capitol steps, and two people, one holding a plastic shield, tussle on either side of a barricade, as helmeted officers look on.
Pro-Trump protesters breach barriers to head to the Capitol on Jan. 6, 2021. (Shannon Stapleton/Reuters)

According to the Justice Department, all three of the Oath Keepers who pleaded guilty to sedition charges, James, Ulrich and Wilson, agreed to help the government build its case against Rhodes and other remaining defendants.

In a court filing summarizing their case against James, who before the riot had served as a bodyguard for Roger Stone, a veteran Republican operative and Trump ally, prosecutors said they believe that the Oath Keepers had wanted, and had made preparations, to try to block Biden from acting as president even after he was sworn in.

Prosecutors say they have evidence that when James left Texas in February 2021, he "took with him multiple firearms, thousands of rounds of ammunition, multiple burner phones, scopes, magazines, night-vision equipment, and other tactical gear” at Rhodes’s request.

"Rhodes told James to be prepared to transport and distribute the equipment to others upon Rhodes’s instruction and to be prepared for violence in the event of a civil war. James stored this equipment in a storage shed in Alabama and awaited Rhodes’s instructions," prosecutors added in the court filing, which was signed by James himself.