these
- Lawyers for Elmer Stewart Rhodes will tell jurors the far-right group believed President Trump would federalize them.
- They will argue at their Sept. 28 seditious conspiracy trial that this, not sedition, was their lawful reason to be at the Capitol on Jan. 6.
- They'll also claim the Insurrection Act is so vaguely written, Trump legally could have used it to make them a federal militia.
When nine accused leaders of the Oath Keepers go on trial for seditious conspiracy in Washington, DC, this fall, jurors in the government's first big, Jan. 6 showcase trial will hear a defense argument that sounds little short of crazy.
They'll be told that the far-right extremists believed President Donald Trump would invoke the Insurrection Act as they gathered at the Capitol, 100 strong in their camo-colored tactical gear — and turn them into his own, ultra-loyal federal militia.
Their fantasy mission? To "Stop the Steal," "Defend the President," and "Defeat the Deep State," according to since-deleted rhetoric from their website. A defiant Trump would officially be their commander in chief.
"Do NOT concede, and do NOT wait until January 20, 2021," Inauguration Day. "Strike now," Oath Keepers leader and founder Elmer Stewart Rhodes urged in an open letter to Trump on Dec. 14, 2020.
"You must call us up and command us."
James Lee Bright, a lawyer for Rhodes, jokes that most people will laugh to learn the Oath Keepers thought they'd ever be a federal militia. "They believe what?" Bright imagines them thinking. "These guys are fucking crazy."
But he says he plans nonetheless to convince jurors that the pro-Trump, anti-government group actually had two lawful — and non-seditious — reasons to be at the Capitol on Jan. 6.
Reason one: They were an invited security force for rally planners and participants, including Roger Stone, Ali Alexander, Latinos for Trump and Virginia Women for Trump.
Reason two: They were awaiting Trump's orders.
When those orders failed to come, Rhodes' lawyers will argue, the Oath Keepers left the Capitol. They had dinner at Olive Garden, and then collected the weapons and provisions they'd stashed — at the ready but never used — in their rooms at a Comfort Inn in Arlington, VA. Then they went home.
"I just want to fight," federal prosecutors say Rhodes complained after failing to get Trump on the phone that night, like some extremist Pinocchio with a thwarted dream of becoming a real militiaman.
Prosecutors, will, of course, tell jurors a different tale.
The feds argue in court papers that the Oath Keepers' private chat messages show sedition was their real motive.
The chats are full of references to a Civil War against "the usurpers" — Joe Biden and Kamala Harris — and to using force to oppose the transfer of presidential power, which is the very definition of seditious conspiracy.
The feds also argue that Rhodes oversaw two military-style "stacks" or formations, of Oath Keepers who forcibly breached the Capitol — and that the real reason the group left DC was that the FBI had begun making arrests.
A far fetched fantasy
"I don't necessarily understand the mindset of it," says Bright, whose private practice is based in Dallas.
"It's not my world view," says Bright, speaking to Insider this week about the Oath Keepers' strategy for a 5-to-6 week trial scheduled to begin Sept. 28.
"But the evidence does exist that these individuals believed in it," he said of the group's hope that Trump would use the Insurrection Act to summon them into federal service against an imagined Biden-Harris "coup."
"They believed that if it was invoked, it was legal," Bright said. "And it would have been legal, arguably."
Which leads to perhaps the most eyebrow-raising part of the Oath Keepers' planned defense.
The Insurrection Act is so broadly written — leaving words like "insurrection," "militia" and "militias of the state" without clear definition — that Trump actually could have federalized the Oath Keepers, Rhodes' lawyers will tell jurors.
"It's so farfetched, and yet it's legal," at least until a court stepped in and held otherwise, Bright believes.
Experts in the Insurrection Act, on the other hand, say no. It's just farfetched.
"While I understand where they got the idea from, what they're saying is mostly nonsense," says Joseph Nunn, counsel for the Brennan Center for Justice at NYU Law School.
Yes, Nunn concedes, there is a separate, archaic federal statute, 10 USC 246 — drafted in 1792, the same year as the original Insurrection Act — which still includes as part of a larger definition of militia, "all able-bodied males at least 17 years of age ... and under 45 years of age."
It's a statute Rhodes cites in his writings, though the 57-year-old believes that military vets such as himself would somehow be eligible until age 65.
"That definition plausibly includes the Oath Keepers," says Nunn. "It also includes me. It also includes seniors in high school." It also includes the Crips street gang and the Brigham Young University men's choir.
"So it would be technically possible," Nunn says, "for the president to invoke the Insurrection Act and call on some group of civilians to act as a militia, and help the president enforce the law or suppress a rebellion."
But "it's just not plausible," he says, not the least reason being that there's no framework for it. Would a federalized Oath Keepers militia be subject to the Uniform Code of Military Justice? Could they be court-martialed?
And ultimately, as desperate as he was to stay in power, Trump didn't go there, probably, as Nunn puts it, because "there were some people in his ear, explaining to him that he couldn't do things."
"There's no world in which it's remotely likely where the president of the United States would invoke the Insurrection Act" says Nunn, "and call on what is fundamentally just a social club of guys who have firearms."
Or is it? The House Jan. 6 hearings are producing evidence and witnesses that suggest that Trump seized upon moves his legal advisers told him were illegal in attempts to cling to power.
There are a few other complications that Rhodes didn't think of, says Michel Paradis, a professor of military and constitutional law at Columbia Law School.
For one, in the centuries since 1792, virtually every state has expressly banned private paramilitary militias from acting as law enforcement in their jurisdictions.
Also, Paradis notes, there's a 1956 revision to the Insurrection Act that requires a president to first ask nicely that the insurrectionists disperse and go home.
How would that even work? The Oath Keepers believed that real insurrectionists were Biden, Harris, "Communists from China" and a shadowy "deep state." Would Trump ask them to disperse, or the pro-Trump mob that breached the Capitol?
"There's simply no example throughout all of Constitutional history of the president ever, essentially, creating his own draft under the Insurrection Act," and calling up civillians, Paradis says.
"It's always been done by drawing upon the militia resources of the states, what we now call the National Guard."
Both Paradis and Nunn agree the Insurrection Act is in dire need of a Congressional overhaul that would clarify these points, and better define what a president can and can't do.
"It leaves totally to the president's discretion what constitutes an insurrection," says Nunn, who has written extensively on the topic for the Brennan Center.
"And it's largely up to the president to decide, do I need to activate a few hundred guys from the Maryland National Guard? Or do I send in the 1st Armored Division?'
Wouldn't it still be sedition?
The Oath Keepers' two-pronged sedition defense — that they were at the Capitol as invited rally security, and that they were awaiting the president's orders — is not an after-thought excuse, Bright notes.
"These guys were not planning this in the shadows," he says. "It all predates January 6. The government has recordings of the Oath Keepers discussing not bringing weapons into the district" until Trump gave the OK, he says.
As president, Trump repeatedly flirted aloud with the idea of invoking the act, including against migrants at the southern border in 2019, against George Floyd protesters in the summer of 2020.
But did Trump — or anyone from Trumpworld — give any indication to the Oath Keepers that he would federalize them, or invoke the Insurrection Act?
"To date, we are unaware of any direct communications that ever took place between the Oath Keepers and Trump, or anyone in his inner circle," Bright says.
Here's another problem with the defense.
What if the government tells jurors sure, let's assume the Oath Keepers did believe Trump would federalize them, even absent of any encouragement of that belief from Trumpworld.
Wouldn't anything they planned to do as an armed, Trump-led militia still amount to sedition?
"I understand that," says Bright. "And that is an area of law we are really deeply looking at," he says. "We're looking into that. We anticipate that argument being made," he added.
"It's all quite complicated. And legally, it's fascinating."
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