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Oath Keepers back in court, minus virus-infected Rhodes

Not waiting around for the leader of the far-right militia to recuperate, the government on Tuesday resumed its presentation of evidence from the Capitol riot.

WASHINGTON (CN) — The federal trial of five Oath Keepers affiliates charged with seditious conspiracy resumed Tuesday without the presence of lead defendant Stewart Rhodes who tested positive over the weekend for Covid-19.

U.S. District Judge Amit Mehta, an Obama appointee, had ordered a single-day postponement of proceedings Monday, refusing to match the 10-day quarantine policy in place at the Alexandria Detention Facility where Rhodes is incarcerated.

Rhodes, 56, and four affiliates of his right-wing Oath Keepers group are charged with orchestrating the insurrection on Jan. 6, 2020, as part of a larger plot to “oppose by force the lawful transfer of presidential power.” Prosecutors have brought counts for seditious conspiracy, saying 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 the ceremony Congress scheduled to certify the 2020 election results.

The government's case picked up again Tuesday with former FBI special agent Whitney Drew back on the witness stand. Drew began her testimony last week, and her cross-examination Tuesday by defense attorney Bradford Geyer included questions about a video of a crowd outside the Capitol building in the early hours of Jan. 6.

Geyer, who represents defendant Kenneth Harrelson, focused on the make-up of crowd, which he described as a “mixture” of individuals — some of whom he insisted were “provocateurs.”

Pointing to a man in the footage wearing a red ski cap with a white scarf over his face, Geyer said the individual was “concealing his nose and mouth almost as if there aren’t any.” Distinguishing that man from others in the footage based on his dress, Geyer insisted he might have been a provocateur trying to agitate the crowd.

But the former FBI agent maintained throughout the line of questioning that she did not know whether that man or any members of the crowd were provocateurs and that she would not describe them as such.

Allegations of agitators infiltrating the crowd at the Capitol to instigate violence are not new. Indeed, the conservative Washington Times ultimately had to retract its false report on the day of the Capitol riot that credited the software firm XRVision as having corroborated speculation that two members of Antifa “had infiltrated” the crowd of pro-Trump supporters who stormed the Capitol. Unlike the Oath Keepers, antifa is a decentralized movement, not an organized group, opposed to fascism.

Geyer asked Drew on Tuesday about an interaction during the riot between his client, Harrelson, fellow defendant Kelly Meggs and U.S. Capitol Police Officer Harry Dunn.

Defense attorneys have been trying to establish over the last two weeks of trial that photos and videos of Meggs, Harrelson and two fellow Oath Keepers standing with their backs to Officer Dunn inside the Capitol on Jan. 6 are proof that they were shielding him from protestors.

Geyer brought up the scene involving Officer Dunn on Tuesday and asked Drew if the Oath Keepers were “intervening on his behalf.”

Drew told the jury she cannot tell from the video evidence alone what the “nature of their interaction” was.

Last week, the Oath Keepers member who snapped the photo testified that they were “protecting this officer from protestors,” and that he heard Harrelson say at one point, “we are not here to hurt you.”

Jurors may hear testimony from Officer Dunn himself as soon as Wednesday. Prosecutors are expected to call Dunn to the witness stand following testimony from a Secret Service agent and an employee of the Architect of the Capitol.

Also standing trial with Harrelson, Meggs and Rhodes, who founded the Oath Keepers organization in 2009, are Thomas Caldwell, 68, and Jessica Watkins, 40.

A seditious conspiracy charge carries a maximum sentence of up to 20 years in prison. It requires prosecutors to prove to the jury that the accused Oath Keepers had an actual agreement to "overthrow, put down, or to destroy by force" the U.S. government.  

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 prison time.

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