Attorney in Oath Keepers trial corrected by judge for inappropriate comments

WASHINGTON - One attorney for Oath Keepers founder Stewart Rhodes told the jury they were hearing “one of the most important jury trials in modern day history,” in his opening statements as members of the extremist group face seditious conspiracy and other charges in the Jan. 6, 2021, attack on the U.S. Capitol.

But attorney Philip A. Linder soon started making comments that Judge Amit P. Mehta found improper, even without objection by prosecutors, resulting in a conference at the bench just minutes into the statement.

Linder told the jury that the five defendants on trial today were facing “substantial prison sentences,” which prosecutors objected to as inappropriate, because juries do not impose sentences in federal court and aren’t told about sentencing ranges. Mehta sustained the objection.

Linder next told the jury that the government had misinterpreted the texts and actions of the Oath Keepers, leading to “government overreach.” Linder said, “Our clients sit in jail -” and Mehta interrupted him. Telling the jury the defendants’ detention status - four are in jail, one is not - is typically withheld from jurors, so they don’t form judgments about a defendant’s guilt. “Our clients sit indicted,” Linder restarted.

Linder predicted that the government would portray the Oath Keepers as “a paramilitary group, a racist group, a violent group - " and Mehta summoned him and the other lawyers to the bench. Earlier today, the defense lawyers had filed a motion trying to keep the prosecution from using inflammatory words such as “racist,” which Mehta denied. Now, Linder was using them himself.

When Linder finished, Mehta addressed the defense lawyers, telling them, “I’m more than happy to give counsel some rope in openings,” the judge said, but told them they should “not refer to clients in jail, and you cannot suggest to the jury any amount of time they’re facing if convicted, that is a no-no. Avoid discussions or commentary about what’s happening with the media and Congress. You’re potentially opening the door to evidence you do not want to have.”

Rhodes and co-defendants Kelly Meggs, Kenneth Harrelson, Jessica Watkins and Thomas Caldwell are members of the extremist group facing seditious conspiracy and other charges in the Jan. 6, 2021, attack on the U.S. Capitol.

The five have pleaded not guilty to felony charges alleging that they conspired for weeks after the 2020 presidential election to unleash political violence to oppose the lawful transfer of power to Joe Biden.

Rhodes has pleaded not guilty to seditious conspiracy, saying his co-defendants’ planning and actions attack on the Capitol were defensive, taken in anticipation of what they believed would be a lawful order from then President Donald Trump deputizing militias under the Insurrection Act to stop Joe Biden from becoming president.

Invoking the Insurrection Act, an obscure, rarely used statute, was an idea sparked in conservative circles in spring 2020 to subdue social justice protests and related rioting. By the end of the year, it had become a rallying cry for Trump and people close to him, including Rhodes and other extremists such as followers of the QAnon conspiracy theory to overturn the presidential election results.

Rhodes’s group urges recruits to be prepared to take up arms to oppose federal orders they disagree with under an “insurrectionist doctrine of the Second Amendment” - declaring that the right to bear arms extends not only to individuals but includes the right to violently oppose the government for personal or subjective reasons, said Brian Levin, director of the Center for the Study of Hate and Extremism at California State University at San Bernardino.

He added, “The violent, premeditated and organized parts of this attack on our Capitol is one of the most toxic byproducts of the conspiratorial and violent politics that we are in today.”

Also in opening arguments, Rhodes’s attorney, Linder, said his client had not called an intermediary in an attempt to reach President Trump on Jan. 6. “That phone call doesn’t exist,” Linder said.

Knowledge of the call is attributed by prosecutors to William Todd Wilson, an Oath Keeper who has pleaded guilty to seditious conspiracy. According to the court documents, Wilson told investigators that he 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. This individual denied Rhodes’s request to speak directly with President Trump.”

Linder said he will cross-examine Wilson on that point, and that jurors will “get a different picture of this case than what the government has sold you here in openings.”

He said the evidence would show the “Quick Reaction Forces” of armed Oath Keepers stationed at hotels outside D.C. on Jan. 6 were “not offensive” but “reactive and defensive only,” and for use only “if Trump called them in.”

The “mission” would be to protect high-profile attendees in a potentially dangerous situation, Linder asserted, not to keep President Biden from taking office.

“They were ready like any military; they were ready to react at President Trump’s request,” Linder said. That request would have been made under the Insurrection Act, which allows the president to deploy military force domestically. Linder promised that Rhodes will testify that he “believed in good faith that then-President Trump could invoke the Insurrection Act and if President Trump could invoke the Insurrection Act, he could ask them to do whatever the president wanted them to do.”

Prosecutor Jeffrey Nestler said in his opening statement that Trump did not have that power, and that Rhodes and his followers were planning to use force regardless of what Trump did.

The lawyer for the next defendant, Thomas Caldwell, opened by saying that the Oath Keepers regularly used “quick reaction forces” with multiple weapons as a contingency for rallies they protected in recent years.

The government has alleged that Caldwell, a Virginia resident, helped coordinate the gathering of guns and ammunition for a “quick reaction force” across the river from D.C., to be summoned as part of the effort to stop the congressional certification of the electoral college vote. Caldwell’s attorney, David Fischer, emphasized to the jury that, “the verb is to react, it’s not to act. Anybody who has served five seconds in the United States military knows that a quick reaction force or quick response team reacts to emergency situation. It’s a ‘break the glass in case of emergency’ group of people, typically EMTs or other medical personnel, to come in as a rescue unit. By definition a QRF would not be used to attack anything, including the United States Capitol.”

Fischer said in the FBI’s extensive investigation of Jan. 6, “Not one single solitary person they have interviewed has said that the QRF was meant to attack the United States Capitol. So any suggestion that the purpose of a QRF was to attack anything in Washington, D.C., on January 6 is an absolute, abject lie. One hundred percent.”

Fischer said the Oath Keepers had staged QRFs at a number of rallies, including two previous rallies in support of President Donald Trump in November and December 2020. He said an armed QRF was staged in Virginia before the “Million MAGA March” in November 2020.

“The Oath Keepers have used QRFs all around the country on private events. They’ve used QRFs in Ferguson, Mo., to defend private businesses. Louisville, Ky., they went out there to make sure people didn’t have their property destroyed.”

In the case of two other Oath Keepers who have pleaded guilty, Joshua James and William Todd Wilson, prosecutors have described in court papers that the plan for QRFs was, “if called upon, to use them in support of the plan were prepared to halt the lawful transfer of presidential power.”

Caldwell was not a member of the Oath Keepers, his lawyer said Monday.

Prosecutor Nestler told jurors earlier Monday that Oath Keepers members had stashed weapons, ammunition and hand grenades in a Comfort Inn in Arlington County, Va., just outside of Washington, D.C., the day before, as a “Quick Reaction Force” to be summoned as needed.

After Nestler played a video of Florida members of the group taking target practice with various weapons, he said they had received “training on unconventional warfare” with a man not on trial Monday, Jeremy Brown. Nestler said Brown drove an RV with hand grenades inside to Washington, D.C., alongside other Florida Oath Keepers, and “sure enough the FBI later recovered grenades from Jeremy Brown’s RV.”

Brown is charged only with misdemeanor violations of entering the restricted grounds that day. The defense argued in a pretrial motion Monday to keep the grenade information out of evidence, but Judge Mehta rejected the motion.

Nestler said that Caldwell specifically chose the Comfort Inn in Ballston, Va., for its proximity to Interstate 66 and easy access into the District.

“You’ll see message after message,” Nestler told the jury, “about organizing the QRF at the hotel in Virginia, and how to get that QRF into D.C., including using a boat to get the QRF across the river.”

He showed a message that Meggs sent to other Oath Keepers with a map for both driving and boating into the city, which he divided into “1 if by land, 2 if by sea.” Meggs noted that “the corner of west basin and Ohio is a water transport landing,” referring to a waterfront area near the National Mall.

Nestler also said of the groups’ defense that Rhodes, who had the “impressive pedigree” of Yale Law School, was only claiming to rely on the Insurrection Act as “magic words” that hid illegal actions. The Insurrection Act was “a code, or a shorthand,” for keeping Trump in office by force, Nestler alleged.

The prosecutor played an audio clip from November 2020 in which Rhodes told associates that while the Insurrection Act gave them “legal cover,” his plan was to “fight against the government no matter what.”

That meeting was recorded by an “increasingly alarmed follower,” Nestler said, as Rhodes was getting “increasingly violent and desperate.”

Nestler also described the groups’ activities at the Capitol, saying Florida Oath Keepers leader Meggs had a three-way call with Rhodes and “operations leader” Michael Greene on the steps of the U.S. Capitol.

Then, he said, Meggs led 14 Oath Keepers who “pushed their way past Capitol Police officers” into the building.

“The crowd cheered for them, yelling ‘Oath Keepers, Oath Keepers’ - they were the leaders,” Nestler said.

It was 2:40 p.m., and staff and members of Congress were still evacuating.

Once inside the Capitol, the prosecution said, the group of 14 split into two groups of seven, according to Nestler. Meggs led one group toward the House of Representatives, where he later said he had looked for House Speaker Nancy Pelosi (D-Calif.) but couldn’t find her. On Election Day, Nestler said, Meggs had told his wife that if he went on a “killing spree … Pelosi would be first.” Fellow Floridian Kenneth Harrelson was with Meggs and later said that he had felt a Capitol Police officer’s body armor to try to ascertain whether it could withstand rifle fire, according to Nestler.

Jessica Watkins, an Oath Keeper from Ohio, led the second group toward the Senate, Nestler said.

“Riot police bravely kept the horde at bay,” he said, as Watkins shouted at the crowd to keep pushing. “It was a clash between an invading army and the police officers trying to save and protect that scared chamber.”

The Oath Keepers were ultimately repelled by police, Nestler said, but their own comments after the event make clear that they believed they had successfully taken the Capitol.

“They were bragging about what they accomplished,” he said, not knowing that Congress would reconvene and confirm Joe Biden’s victory late that evening.

While Rhodes publicly called on Trump to invoke the Insurrection Act, Nestler noted that he gave a speech in December promising that the Oath Keepers would act with or without the president: “If he does not do it now, while he is commander in chief, we are going to have to do it ourselves later, in a much more desperate, much more bloody war.”

And on Jan. 6, 2021, as the congressional vote count was underway, Rhodes told his followers, “Pence is doing nothing, as I predicted.” That was the signal that it was time to “take matters into their own hands,” Nestler said.

Just before the trial session began Monday, Mehta denied multiple motions filed over the weekend in which defendants tried to keep a Washington, D.C., jury from determining their guilt or innocence.

Defendant Meggs asked for Mehta to decide his fate rather than the jury, saying through his attorney that the jury could not be “fair and impartial” because “the majority of those questioned” as part of the jury pool “had negative feelings about the events of January 6, 2021.”

He and the other four defendants also asked for the trial to be moved to a federal court in Virginia, for similar reasons.

Mehta rejected both requests. Of the 12 jurors and four alternates selected for the trial, “none . . . had heard of any of these defendants,” he said. All said they could be fair and impartial.

“My sense is this a very diligent group of citizens, all of whom are going to abide by the court’s instructions,” the judge said.

The Rhodes trial could reveal new information about the quest to subvert the 2020 presidential election results as prosecutors continue to probe President Donald Trump’s conduct and that of his inner circle.

The prosecutors’ challenge will be to prove that Rhodes, one of the most visible figures of the far-right anti-government movement, and his group intentionally conspired to use force to prevent President Biden’s swearing-in. Whether the government tips its hand in court about the Oath Keepers’ ties to other political figures, the trial is an important step in the wider probe, analysts said.

Investigators continue to ask cooperating members of the Oath Keepers who have pleaded guilty about their knowledge of any coordination with others, according to defense attorneys. And they would welcome cooperation from those on trial, even if it came after convictions and the prospect of prison, former prosecutors said.

Prosecutors plan to call as many as 40 witnesses over a projected five-week trial, draw from 800 statements by those charged and summarize tens of thousands of messages, hundreds of hours of video footage and hundreds of phone call, location and financial records, according to pretrial proceedings. Three Oath Keepers members have pleaded guilty to the seditious conspiracy charge and are among more than a dozen potential informants in the case, according to government filings.