WASHINGTON — The defense team in the Capitol riot trial of the Oath Keepers leader is relying on an unusual strategy with Donald Trump at the center.
Lawyers for Stewart Rhodes, founder of the extremist group, are poised to argue that jurors cannot find him guilty of seditious conspiracy because all the actions he took before the siege on Jan. 6, 2021, were in preparation for orders he anticipated from the then-president — orders that never came.
Rhodes and four associates are accused of plotting for weeks to stop the transfer of presidential power from the Republican incumbent to Democrat Joe Biden, culminating with Oath Keepers in battle gear storming the Capitol alongside hundreds of other Trump supporters.
Opening statements in the trial are to begin Monday.
Rhodes intends to take the stand to argue that he believed Trump was going to invoke the Insurrection Act to call up a militia to support him, his lawyers have said. Trump didn’t do that, but Rhodes’ team says that what prosecutors allege was an illegal conspiracy was “actually lobbying and preparation for the President to utilize” the law.
It’s a novel legal argument in a trial that’s one of the most serious cases coming out of the Capitol attack.
“This is an incredibly complicated defense of theory, and I don’t think that it’s ever played out in this fashion in American jurisprudence,” said one of Rhodes’ lawyers, James Lee Bright.
The Insurrection Act gives a president broad authority to call up the military and decide what shape that force will take. Trump did float that kind of action at other points in his presidency.
To succeed with this line of defense, Bright would have to convince a jury that Rhodes was waiting on the go-ahead from the president, which could be a major hurdle.
Rhodes’ lawyers have argued that Trump could have called up a militia in response to “what he perceived as a conspiracy to deprive a class of persons in several states of their voting rights.” Rhodes published an open letter on the Oath Keepers’ website in December 2020 urging Trump to use the Insurrection Act to “‘stop the steal’ and defeat the coup.”
If Rhodes testifies, he could face intense questioning from prosecutors, who say his own words show the Oath Keepers would act no matter what Trump did.
Bright said Rhodes, a Yale Law School graduate, understands the risks of testifying but has insisted since the first day they met that he be able to “speak his piece.”
Rhodes and his associates — Kelly Meggs, Thomas Caldwell, Jessica Watkins and Kenneth Harrelson — are the first Jan. 6 defendants to be tried for seditious conspiracy, a rarely used, Civil War-era charge that can be difficult to prove.
The defense would have to convince the jury that the Oath Keepers really intended to defend the government, not use force against it, said David Alan Sklansky, a former federal prosecutor who’s now a professor at Stanford Law School.
“If you think you are plotting to help protect the government, there is an argument that that means you don’t have the required guilty mindset that’s necessary in order to be guilty of seditious conspiracy,” he said.
Court records show the Oath Keepers repeatedly warning of the prospect of violence if Biden were to become president. The group amassed weapons and stationed armed “quick reaction force” teams at a Virginia hotel in case they were needed, prosecutors say.
