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Justice Department gears up for Oath Keepers’ seditious conspiracy trial

"Securing convictions in this case would be a body blow to one of the largest anti-government movements in the U.S.," one extremism expert told Courthouse News.

(CN) — Prosecutors are gearing up for one of the biggest Capitol riot trials yet as five members of the right-wing extremist Oath Keepers group are set to go before a jury next week on seditious conspiracy charges tied to an alleged plan to oppose by force the transfer of presidential power on Jan. 6, 2021.

The Department of Justice has obtained some “significant” court wins in the 20 months since the attack, according to extremism expert Jonathan Lewis, “but this is probably one of the biggest tests to show if they can hold domestic violent extremist groups accountable for their criminal conduct on Jan 6.”

“Securing convictions in this case would be a body blow to one of the largest anti-government movements in the U.S.,” Lewis told Courthouse News this week, “which is important in itself.”

The government’s indictment accuses 11 members of the loosely organized antigovernment militia of communicating about the plan through encrypted chats, stocking up on weapons and traveling across the country to “oppose by force the lawful transfer of presidential power.” Three members have already pleaded guilty.

“On paper, the contours of the conspiracy seems fairly straightforward,” according to Lewis, a research fellow at the Program on Extremism at George Washington University.

In the government’s case, Oath Keepers’ founder Stewart Rhodes is painted as the ringleader of the group’s purported plan to disrupt the Jan. 6, 2021, ceremony in which Congress would certify that then-President Donald Trump had lost the election to his Democratic rival, Joe Biden.

Rhodes, 57, is said to have “outlined a plan to stop the lawful transfer of presidential power, including preparations for the use of force, and urged those listening to participate,” at least one month before the ceremonial certification.

A seditious conspiracy charge carries a maximum sentence of up to 20 years in prison and it requires prosecutors to prove to the jury that an actual agreement existed between each of the accused Oath Keepers.

“Not just any agreement,” according to extremism expert Brian Levin, “but one aimed at attacking the U.S. government to overthrow it.”

Rhodes’ alleged co-conspirators set to stand trial alongside him in the Washington federal courthouse are Thomas Caldwell, 68; Kelly Meggs, 53; Kenneth Harrelson, 41 and Jessica Watkins, 40.

“[They] have greater criminal exposure because of the alleged agreement and plan from the leader of a national group on down to participate, allegedly acting as a larger cohesive unit,” Levin said.

But actual participation in the purported plan varied on Jan. 6, according to Levin, a criminal justice professor and director of the Center for the Study of Hate and Extremism at California State University.

Rhodes, himself, is not accused of physically breaching the Capitol on Jan. 6, rather, he is said to have been standing outside the Capitol using a walkie talkie application on his phone while some of his co-defendants breached the building in military formation “stacks.”

Other defendants were standing by at a hotel in Virginia as part of a “Quick Reaction Force” ready to be summoned by Rhodes should they need weapons ferried across the Potomac, according to the indictment.

Lewis brought up the 2020 case against men accused of conspiring to kidnap Michigan Gov. Gretchen Whitmer and said the government’s use of undercover FBI agents and informants “seemed to muddy the water” during the trial.

Some defendants in the first Whitmer trial were able to use them as “an avenue to claim entrapment in an effort to secure acquittal,” he said, but “there's far less evidence to date that the Oath Keepers have any standing to push for this kind of defense with credulity.”

Lewis said it will be interesting to see how the three defendants who already pleaded guilty to seditious conspiracy — Joshua James, Brian Ulrich and William Todd Wilson — will play into the government’s case at trial, if at all.

According to Wilson’s plea agreement, he left the Capitol grounds around 5 p.m. and went to a private suite at the Phoenix Park Hotel where Rhodes gathered him and others and called an unnamed person on speaker phone.

"Wilson heard ... Rhodes repeatedly implore the individual to tell President Trump to call upon groups like the Oath Keepers to forcibly oppose the transfer of power," according to his plea.

The person reportedly denied Rhodes's request to speak directly with Trump and after the phone call ended, Rhodes told the group, "I just want to fight."

Court filings show the Oath Keepers are planning to use a public authority defense argument during the trial, but Lewis doubts jurors will be swayed by it.

“It's difficult to see this public authority defense — that the Oath Keepers truly believed that President Trump was about to call them up under the Insurrection Act as some kind of ad-hoc militia, and that is why they engaged in their criminal conduct — working in this jury trial,” Lewis said.

The government’s argument, meanwhile, is backed up by the “mountains of evidence the DOJ has presented to date in the public record of this case,” Lewis said.

The Justice Department has amassed hundreds of thousands of pieces of evidence, including photos and videos, used to charge more than 870 people so far in connection with the Capitol riot. As of Sept. 6, about 300 people have pleaded guilty to misdemeanors, 80 have pleaded guilty to felonies, and at least 21 people have been sentenced to prison.

But the Oath Keepers are the first of hundreds of Jan. 6 defendants to be tried before a jury for seditious conspiracy charges, which are so rare the government has only ever filed them four other times.

As an extremism researcher, Lewis said he is looking forward to seeing how the government potentially “entangles other conspiracists whose relationships to the group may be more attenuated but still nonetheless exposed criminally, because they shared a common legally actionable purpose.”

According to the indictment, at one point during the eve of Jan. 6, Rhodes and others are said to have gone to an underground parking garage in Washington where they met for about 30 minutes with a group of people including Enrique Tarrio, the former leader of the right-wing Proud Boys group who is also charged with seditious conspiracy in connection with the riot.

Jury selection is slated to begin on Monday in the Oath Keepers case. A second jury trial for four of the accused Oath Keepers defendants is set for Nov. 27, roughly one month before the Proud Boys’ will be tried for Capitol riot-related seditious conspiracy.

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