By Sarah N. Lynch
WASHINGTON (Reuters) – The trial of Stewart Rhodes, the founder of the far-right Oath Keepers militia, begins next week in what could be the biggest test for the US Department of Justice in its quest to detain former President Donald Trump’s supporters responsible for their attack on the Capitol on January 6, 2021.
Rhodes and four other Oath Keepers employees become the first defendants in more than 10 years to face federal charges of seditious conspiracy under a Civil War statute that is rarely prosecuted in the United States and carries a legal maximum sentence of 20 years in prison. The Oath Keepers is an anti-government militia whose membership includes current and former U.S. military and law enforcement officers. Rhodes, a former Army paratrooper and a trained lawyer from Yale University, founded the group in 2009.
The five on trial – Rhodes along with Kelly Meggs, Thomas Caldwell, Jessica Watkins and Kenneth Harrelson – are charged with conspiracy to use force to oppose the transfer of power from then-President Trump, a Republican, to his Democratic successor, Joe Biden.
Incendiary conspiracy is defined as two or more people who conspire to “overthrow, bring down, or forcibly destroy the government of the United States”.
Prosecutors have said the five defendants were trained and scheduled for Jan. 6 and had weapons stockpiled at a northern Virginia hotel outside the capital. When lawmakers gathered on Jan. 6 to confirm Biden’s election victory, several Oathkeepers stormed into the Capitol Building dressed in paramilitary gear. They are not charged with carrying firearms on the Capitol grounds. Trump has made false claims that the election was “stolen” from him through widespread vote fraud.
Jury selection will begin on September 27 and the process is expected to take several weeks.
The Justice Department’s last attempt to prosecute an inflammatory conspiracy case was in 2010, when it charged members of a Michigan militia called the Hutaree. A judge acquitted them, ruling that the defendants’ anti-government rhetoric was insufficient to prove that they intended to act on their behalf.
“The Justice Department doesn’t have a great track record when it comes to inflammatory conspiracy cases,” said Brandon TSWT, a former federal prosecutor now at Jenner & Block law firm.
To prove the charges, TSWT said, prosecutors must show that the defendants not only talked about the use of force against the government, but that they also took steps to carry out their plans.
Juries want to see that “there’s a realistic chance this could have worked so they know it’s not just puffy,” TSWT said, adding that he believes it could be harder for the Oath Keepers lawsuit. lawyers to claim that their clients are simply “bluffing”.
Prosecutors are expected to use video clips of the January 6 attack, text messages and audio recordings of some of the Oath Keepers’ defendants. The digital evidence will be supported by testimonies from about 11 FBI agents that summarize key details gleaned from tens of thousands of messages and hundreds of hours of video footage from the day of the attack.
THE BLIND SHEIKH
The last time the government won convictions in an inflammatory conspiracy case was in 1995, when a jury in Manhattan convicted Muslim cleric Omar Abdel-Rahman — known as the “Blind Sheikh” — and his co-conspirators in connection with the 1993 World Trade Center. bombing and a wider plot to target other New York City landmarks.
What helped the government win that case, according to former chief prosecutor Andrew McCarthy, were the defendants’ statements about waging war on America.
“There was no way they could claim that someone in the United States government was pushing them to do that,” McCarthy said, contrasting the Oath Keepers case in which militia members said Trump had called on them to stop the election being “stolen.” would become. “
“We’ve never had a sedition case where the defendants could credibly claim that they thought the United States Commander in Chief was actually calling them to action because bad people in government were trying to steal an election,” McCarthy said.
A ruling this month by U.S. District Judge Amit Mehta will restrain the Oath Keepers defendants from trying to blame Trump for their actions. Mehta banned them from using a “public authority” defense, meaning they can’t claim they relied on Trump’s orders to break the law because he didn’t have the authority to call them into action on January 6. .
The judge has yet to decide whether some of the defendants can claim there was no conspiracy because they waited for Trump to give them legal authority to use force under the Insurrection Act, a law that gives the president the power to deploy the military. to suppress civil disorder.
Four other members of the Oath Keepers charged with seditious conspiracy to face charges on Nov. 29. Several prominent leaders of the far-right Proud Boys group will appear separately on December 12 for seditious conspiracy.
(Reporting by Sarah N. Lynch; editing by Will Dunham and Ross Colvin)