WASHINGTON (CN) — Elmer Stewart Rhodes never breached the walls of the U.S. government himself on Jan. 6, 2021, but prosecutors told jurors Monday to think of the Yale-trained lawyer as the insurrection's mastermind.
Standing outside the Capitol while his troops stormed the building in military-style stack formations, Rhodes was like a general on the battlefield, said U.S. Attorney Jeffrey Nestler, delivering an opening statement that lasted about 90 minutes. As the riot raged, ultimately delaying the ceremony in which Congress certified the results of the 2020 election, Nestler noted that “quick reaction forces” stood in Arlington with weapons, waiting ready to be ferried across the Potomac with their weapons should Rhodes give the word.
Nestler said Rhodes and the members of his Oath Keepers organization were prepared to do whatever was necessary, “up to and including use of force,” to stop the lawful transfer of power that day from former President Donald Trump to Joe Biden.
“They concocted a plan for armed rebellion to shatter a bedrock of American democracy,” Nestler continued.
It was just two days after the votes showed Trump's defeat that Rhodes wrote to regional leaders of the Oath Keepers to recommend that they refuse to accept Biden as president.
“We aren’t getting through this without a civil war,” Rhodes wrote on Nov. 5, 2020 — a message that Nestler recounted to the jury Monday.
Later that month, Nestler continued, Rhodes walked his group through the 2000 overthrow of the former Yugoslav leader Slobodan Milosevic. He transmitted a “step-by-step procedure” detailing how protesters swarmed the streets after Milosevic's disputed reelection and gathered at the Capitol. Having encouraged military to align with people in the streets, the revolutionaries stormed parliament.
Nestler told jurors they would see evidence that Rhodes targeted former military and law enforcement members when recruiting for the Oath Keepers. He said they communicated via encrypted text messages and covert meetings but also through public calls to action for then-President Trump to invoke the Insurrection Act.
Going into December, Rhodes’ rhetoric allegedly turned more violent. Rhodes published two public letters that implored Trump to act, but “Trump didn’t act as Rhodes wanted,” Nestler said.
At this point, Nestler said, Rhodes told his followers that, if Trump did not try to stop the unlawful transfer of power, they would have to do it themselves.
Turning to a possible defense that the Oath Keepers might raise — that Rhodes genuinely believed Trump would invoke the Insurrection Act — Nestler said those “magic words” do not give them plausible deniability.
“A defendant’s unlawful intent is not excused because he simultaneously has another motive for his conduct,” the prosecutor said.
Nestler emphasized that the defendants used force to drive members of Congress out of the Capitol, to occupy the building for a period and to stop Congress’ ceremonial certification of the presidential election results. The only verdict consistent with the evidence, he told the jury, is to find them all guilty.
But Rhodes’ attorney Philip Linder insisted to jurors that the government’s opening arguments do not tell the full story and that his client “did nothing illegal that day.”
He said the communications that the government will show amount to a mere snippet of the hundreds of thousands of text messages between Rhodes and others, as well as scores of photos and videos.
While the government will show only what they want to show, Linder continued, the defense is going to “put things into context.”
The real evidence, according to Linder, will show that Rhodes and his four co-defendants were in Washington on Jan. 5 and 6 to do security for events like they’ve done throughout the 12-year history of the Oath Keepers.
“That’s why he did what he did,” Linder said.
Witnesses and Rhodes himself will testify to the jury that Rhodes meant no harm to the Capitol on Jan. 6 and that he had “no violent intentions,” Linder added.
Insisting that the Oath Keepers were a “peace-keeping force” in Washington at the time, Linder noted that the group made themselves available at places like this where there is controversy to “help keep peace in the streets." The lawyer pointed to the group's presence at protests in Ferguson, Missouri, in 2015 following the death of Michael Brown.
Rhodes and others believed in good faith at the time that Trump could invoke the Insurrection Act, and that Trump in turn could ask them to do whatever they wanted, instructions that Linder said could take the form of, “hey, bring guns in here, or hey, put down a riot.’”
They were ready to act at President Trump’s request, he said, and they were ready to defend speakers like they’ve done “hundreds of times.”
Linder spoke for about an hour, urging the jury to keep an eye on the evidence and not to be swayed by text messages or videos that he called inflammatory.
U.S. District Judge Amit Mehta, an Obama appointee, is presiding over the trial, which is expected to last up to six weeks.
A seditious conspiracy charge carries a maximum sentence of up to 20 years in prison. It requires prosecutors to prove to the jury that an actual agreement — to "overthrow, put down, or to destroy by force" the U.S. government — existed among the accused Oath Keepers.
The Justice Department has so far charged more than 870 people in connection with the Capitol riot. As of last month, about 300 people have pleaded guilty to misdemeanors, 80 have pleaded guilty to felonies. Approximately 132 people have been sentenced to a period of incarceration.
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