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Defense in Oath Keepers trial presses for specifics of insurrection plan

Even if Stewart Rhodes used "bombastic language" ahead of the insurrection, defense lawyers say there is no evidence that the right-wing militia leader had a "detailed plan" for anyone to storm the U.S. Capitol on Jan. 6, 2021.

WASHINGTON (CN) — Defense attorneys for Stewart Rhodes and four affiliates of his far-right extremist group quizzed a federal agent Tuesday about the government's basis for charging them with seditious conspiracy, insinuating that investigators never found physical proof of a plan to mount the Jan. 6 insurrection.

Rhodes, 56, and four members of his Oath Keepers group are accused of orchestrating the storming of the U.S. Capitol in early 2021 as part of a larger plot to “oppose by force the lawful transfer of presidential power.” To prove seditious conspiracy, however, the prosecution must show that the five defendants had an actual agreement to "overthrow, put down, or to destroy by force" the U.S. government.

As the government tells it, the defendants communicated about their plans via encrypted chats, stocked up on weapons and traveled across the country to carry out the attack that delayed Congress’ certification of the 2020 election. But defense attorneys insist that there is no proof that the defendants were in the nation’s capital on Jan. 6 for any reason other than what they say they were doing, providing security detail to speakers at right-wing rallies, like they have in the past.

Rhodes may not have physically breached the Capitol, but prosecutors said in opening arguments that he was rather like a general on the battlefield, standing outside while his troops stormed the building in military-style stack formation. Rhodes’ attorneys attempted to poke holes in that claim on Tuesday during the cross-examination of FBI Agent Kelsey Harris.

Defense attorney James Bright focused on messages Rhodes sent during the riot by way of the secure messaging app Signal. The chat was called “OK DC Op Jan 6,” and Rhodes wrote things like: “Back steps. On reflecting pool side. Opposite SCOTUS.”

Arguably, Bright said, his client was merely giving directions to other Oath Keepers in the group chat who were working security detail all over the city, or he was at least telegraphing his location.

The messages were sent to a group chat that includes people who “were not in the Rotunda” at the time, Bright insisted. Bright denied that such communications were not directions for specific people — namely, his co-defendants, Kelly Meggs, Kenneth Harrelson and Jessica Watkins, who are accused of breaching the Capitol in military-stack formations. Indeed, the lawyer pressed, some of the messages were sent after the alleged stacks would have breached the building.

Agent Harris said it “seems more” that Rhodes could have just been talking about himself and that he does not know whether the defendant was giving directions. The agent also confirmed that he did not see any communications about a “preset rendezvous point.”

The defense attorney probed further, asking whether he saw any messages in which Rhodes ordered people to “go into the Capitol.” The agent said he did not.

And it would also be true then, Bright continued, that the evidence they just discussed had “no detailed plan” for the Oath Keepers to go into the Capitol Rotunda.

“There’s bombastic language,” Bright said, “But there’s no detailed plan.”

The agent responded that some of the messages he saw may contradict that claim, but the defense attorney cut him off and said he was giving a “nonresponse.”

“I understand the point that you’re making,” Bright told the government witness. “I’m asking you, in your review of the evidence, if you have seen a specific set of plans on what to do that day.”

“No, sir,” the agent said.

The cross of the agent comes after two key government witnesses, Graydon Young and Jason Dolan, also testified at trial that they were not aware of any plan concocted by the defendants to storm the Capitol on Jan. 6.

Prosecutors said they are planning to rest their case on Wednesday, and the defense is expected to begin presenting evidence on Thursday. U.S. District Judge Amit Mehta, an Obama appointee, ordered two delays last week in the trial. Thomas Caldwell, 68, is also standing trial with the other four defendants in Washington.

The Justice Department so far has charged more than 880 people in connection with the Capitol riot. As of Oct. 6, about 313 people have pleaded guilty to misdemeanors, about 99 have pleaded guilty to felonies. Approximately 152 people have been sentenced to a period of incarceration.

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