Legal Arguments, Evidence, and Jurors: Judge and Lawyers Hash Out Final Details Before Start of Oath Keepers Jan. 6 Seditious Conspiracy Trial

The march toward the first seditious conspiracy trial in the Jan. 6 attack on the U.S. Capitol continues apace, with prosecutors, defense lawyers, and the federal judge overseeing the case meeting for a final pretrial conference to hash out as many issues as possible before trial begins next week.

The trial of Stewart Rhodes, the leader of the right-wing Oath Keepers militia group, and four co-defendants will start Tuesday in Washington D.C. They are facing charges of seditious conspiracy — widely considered to be the most serious charge issued so far in the more than 800 prosecutions of alleged Capitol rioters — as well as conspiracy to obstruct an official proceeding, obstruction of an official proceeding, destruction of government property, civil disorder, and assault.

The 11 defendants have been divided into two trial groups: Rhodes, along with Kelly Meggs, Kenneth Harrelson, Jessica Watkins, and Thomas Caldwell, are set to start trial on Sept. 27. Defendants Roberto Minuta, Joseph Hackett, David Moerschel, and Edward Vallejo are set to start trial in November.

At Thursday’s conference, U.S. District Judge Amit Mehta addressed issues ranging from potential jurors to the defendants’ argument invoking a centuries-old law that they say allowed them to bring caches of weapons to the D.C. area and ready a “Quick Reaction Force” in support of Donald Trump, who encouraged his supporters to march toward the Capitol building on Jan. 6 as Congress was in the process of certifying Joe Biden‘s win in the 2020 presidential election.

According to prosecutors, members of the Oath Keepers communicated ahead of time to prepare to besiege the building. Although Rhodes himself was not on Capitol grounds at the time of the attack, other members of the group allegedly used a “stack formation” to maneuver through the crowd and make their way inside.

Prosecutors: Defendants Are Trying to Use the Insurrection Act as ‘Legal Cover’ for Seditious Conspiracy

The first matter discussed was the potential role that the Insurrection Act may play in the defendants’ case. According to a motion filed on Sept. 19, Rhodes’ attorney James Lee Bright argued that it will be “essential at trial” to “clarify the historical and legal predicate” for the actions of Rhodes and his co-defendants “in light of the Insurrection Act” in order to defend the seditious conspiracy charge.

According to Bright’s brief, the defendants’ reliance on their belief that Trump would invoke the act — a move Rhodes himself had been encouraging since the 2020 presidential election was declared for Biden on Nov. 7, 2020 — negates the criminal intent necessary to prove a charge of seditious conspiracy.

“The mens rea element of this charge, therefore, hinges upon the Government proving that the actions the Defendants were preparing to take would have been unlawful,: the memo says. “[T]he Defendants therefore should be entitled to respond to the mens rea element by explaining that they were acting in reasonable reliance upon Trump’s own statements and his broad authority under the Insurrection Act.”

The filing notes that Trump had considered using the Insurrection Act in 2019 to deport undocumented immigrants, and again in 2020 during the racial justice protests over the murder of George Floyd in police custody.

Bright argues that his client’s own words support the argument that the defendants did not have the necessary criminal intent to participate in a conspiracy to overthrow or oppose the authority of the U.S. government.

“[T]he Government’s own evidence shows that Rhodes was actively lobbying and preparing for the President to invoke the Insurrection Act,” Bright says in the motion. “Since his indictment, Rhodes has maintained that the QRFs were not to be engaged unless Trump did, in fact, invoke the Insurrection Act — either to suppress a voting ‘conspiracy’ under § 253(1) or an ‘unlawful obstruction, combination, or assemblage’ under § 252. Each of the overt acts that the Government alleges to be in furtherance of sedition were, in fact, in reliance and preparation for Trump lawfully exercising his unequivocally broad power under the Insurrection Act.”

Bright noted that the Insurrection Act defense is not connected to any potential entrapment-by-estoppel or public authority defense — an approach that was met with skepticism when it came up in an August hearing — because Trump did not, in fact, invoke the Insurrection Act on Jan. 6.

“Rhodes and the other Defendants are not claiming to have acted under actual or apparent public authority,” Bright argues in the brief. “In fact, doing so would represent a legal impossibility. Trump never invoked the Insurrection Act, so the condition precedent for a public authority defense (government authorization of the defendant’s actions) was not met. The Defendants were simply acting in anticipation of what would have been lawfully given orders under the Insurrection Act. What the Government contends was a conspiracy to oppose United States laws was actually lobbying and preparation for the President to utilize a United States law, 10 U.S.C. § 252–54, to take lawful action.”

During Thursday’s hearing, prosecutors argued that extensive discussions of the Insurrection Act, the first iteration of which emerged in 1792, would be confusing to the jury and slow down the proceedings.

“What’s relevant is only what was in the minds of these defendants as to the Insurrection Act,” prosecutor Alexandra Hughes said.

Hughes also said that at trial, the government intends to rebut any assertion from Rhodes and the defendants that their actions were condition on any invocation of the law, and that any such defense is simply “legal cover” for unlawful actions.

“Your theory of the case is that references to the Insurrection Act and testimony that a defendant might present about the Insurrection Act is just a ruse, a cover, because the intention all along — whether the Insurrection Act was invoked or not — was that these defendants were going to resist the authority of the United States by force,” Mehta said by way of clarification.

“Yes, Your Honor,” Hughes replied. She went on to say that in the government’s view, defendants should only be allowed to testify as to their understanding of the Insurrection Act at the time the alleged conspiracy took place.

Hughes also noted that the Justice Department lawyers would argue that defense efforts to focus on the Insurrection Act may be barred by Federal Rule of Evidence 403, which excludes evidence that may be more prejudicial to one party than relevant to the case.

Bright suggested that the judge and lawyers were “overthinking” the matter and made an attempt to, in his words, “underthink” the issue, using an analogy to make a point about the defense’s position.

“If [Meggs attorney Stanley Woodward] and I start a [repossession] business and go out to a residence and get ready to repo a car, we have the tools ready to hotwire a car, but we are waiting for a court order to repo it, have we committed a conspiracy?” Bright asked. “Of course not. Law enforcement agents surrounding a home, waiting for a court order [to enter] … are they committing a conspiracy to kidnap? Are they committing a conspiracy to murder a person? Of course not. They’re waiting for lawful authority.”

“If defendants were waiting on lawful authority, I would consider it a non-crime,” the lawyer added.

Ultimately, Mehta determined that the defendants would be limited somewhat in their ability to discuss the Insurrection Act during trial.

“I think the bottom line is [that] the government does not object to the defense getting up and saying, in opening statement, that these defendants did what they did in anticipation of the president’s invocation of the Insurrection Act,” the judge said. “There will be no statement about the legality of the president doing so, but they understood the president had the authority, and they took the following actions because they understood him to have the authority.”

Potential Juror Who Called Jan. 6 a “Treasonous” Act Won’t Return for Voir Dire, But Others With Thoughts About Jan. 6 May Face Further Questions

Up next: the matter of jury selection. This has long been a point of contention in Jan. 6 cases — including this one — with lawyers trying to get their clients’ cases moved away from Washington D.C. to what they perceive will be more receptive jurors elsewhere.

On Thursday, Mehta and the lawyers hashed out which potential jurors would be dismissed from the jury pool based on their responses to a 68-question questionnaire that included questions about the jurors’ feelings about Jan. 6, whether they had any connection to the event itself, and whether they believed they could fairly judge the defendants on trial.

Some potential jurors, such as those who articulated significant health concerns, were dismissed quickly, as government prosecutors deferred to the judge on that particular issue. But generally, when it came to the jury pool, defendants wanted anyone with a negative impression of Jan. 6 to be eliminated from the jury pool, while prosecutors encouraged Mehta to bring them in for further questions.

When one respondent wrote on the questionnaire that Jan. 6 was one of the most “treasonous acts in the history of this country,” prosecutor Jeffrey Nestler argued that Mehta should investigate to see whether the juror could be fair.

“I think it’s important to think about the difference between whether Jan. 6 was a treasonous act and whether these defendants were [engaged in treasonous acts],” Nestler argued. “Many jurors have strong feelings about the day, but they can still be impartial about these defendants.”

Mehta disagreed and dismissed the juror “because of concerns for the person’s ability to be fair and impartial.”

However, even where some jurors indicated having negative feelings about the siege at the Capitol, Mehta said he was inclined to bring people in for further questioning.

“Once they’re questioned, they sort of understand that their task is not to judge the Jan. 6 event generally, but these defendants as evidence is presented,” the judge said.

One person who won’t be asked to return for voir dire: an area journalist who covered the Capitol attack itself, as well as Trump’s impeachment.

Nestler encouraged the judge to dig deeper to see whether the juror was qualified.

“We thought they would benefit from further voir dire,” Nestler said. “They said they could be fair and important. It should be tested here in court.”

Mehta disagreed.

“I do have some concerns that the person might be able to put out of their mind what they learned in covering the Jan. 6 event and impeachment,” the judge said. “For that reason I’m going to strike [the juror] for cause.”

Mehta recalled that he dismissed another journalist from the jury pool on a different Jan. 6 case and said that it’s “probably a good idea to keep them off the jury.”

In the end, Mehta dismissed 29 people from the jury pool on Thursday based on questionnaires, leaving around 120 potential jurors to face voir dire at the start of trial.

Lawyer: Defendant Was Joking When He Said He “Wiped His Backside” On Nancy Pelosi’s Doorknob

The remainder of the hours-long hearing was devoted to evidence: whether specific pieces of evidence could be admitted at trial, and whether defendants were entitled to certain evidence at all. Mehta was clear that now is the time to iron out as many disagreements over such evidence as possible.

“I’m telling you right now, if there are large chunks of documents that you have an objection to, you better raise them before trial, because I’m not going to take them up on a one-by-one basis,” Mehta said. “I’m just not going to do it.”

Caldwell’s lawyer David Fischer, for example, doesn’t want jurors to see video of his client making crude remarks in reference to the office of House Speaker Nancy Pelosi (D-Calif.).

“There’s a video taken on Jan. 6 [around 2:51 p.m.], taken by Sharon Caldwell and Mr. Caldwell after Congress has already been evacuated,” Fischer said, referring to Caldwell and his wife. “Mr. Caldwell makes what I would characterize as an obvious joke, that he wiped his backside on the speaker’s doorknob. He was not in the Capitol at the time. He had not been in the Capitol.”

Fischer said that he would object to that evidence being admitted “on 403 grounds,” citing the rule of evidence that weighs the relevance of a piece of evidence against its potential prejudicial impact.

Mehta said that he didn’t think the video is excludable on 403 grounds, adding: “If he didn’t get into the building, then it’s just bluster.”

“We think it’s bluster,” prosecutor Kathryn Rakoczy said.

Mehta said that statements Caldwell made on a cell phone video indicating that he knew where then-Vice President Mike Pence lives and that “he better do what he [should] do” would also be admitted.

Mehta did agree to exclude a text from Caldwell that Fischer said would unfairly prejudice his client. During an exchange between Caldwell and co-defendant Crowl, Caldwell asked Crowl: “Where you is?”

Crowl’s response, according to text records, was: “Where Jew is?”

“Mr. Crowl responded ‘Where you is’ but it came out on his cell as j-e-w,'” Fischer explained, adding that he has gone through Crowl’s cell phone and he “[hasn’t] seen any antisemitism.”

Mehta asked the prosecutors if they intended to introduce that piece of evidence to support that Crowl intentionally used the word “Jew” instead of “you.”

Rakoczy hedged.

“I don’t know, it could be a crass joke or a playful something,” she said. “It’s in the middle of a sentence that is otherwise spelled appropriately, so I don’t know. I don’t think we plan on arguing that anyone should derive anything antisemitic from it. It shows Mr. Caldwell’s intent to meet up with Ms. Watkins and Mr. Crowl at the hotel.”

“Is there anything to suggest that this was anything other than an error, or anything to suggest Mr. Crowl harbors antisemitic views?” Mehta asked.

“It’s a silly thing to say,” Rakoczy replied. “I don’t think we should edit it.”

Mehta disagreed.

“I think we should edit it,” the judge said. “It’s one statement, it could be inflammatory, we could have members of the Jewish faith — or anyone of any faith — on the jury, so I will ask the government to redact that word from that exhibit.”

Mehta did say he would allow a text message from Caldwell saying that he would “start” a civil war on Jan. 6 “if necessary.”

“The statements are clearly probative to state of mind,” Mehta said. “The prejudicial impact doesn’t substantially outweigh the probative value.”

Next, Mehta turned to a motion from Rhodes’ attorney Edward Tarpley that sought to subpoena text messages, emails, and other correspondence from members of the Oath Keepers who have pleaded guilty to Jan. 6-related charges, including Rhodes co-defendants Joshua James and Brian Ulrich.

Tarpley, who only recently signed on as Rhodes’ third defense lawyer, said that his client believes that the defendants’ guilty pleas are the result of “pressure placed on them by the government” and that they “agreed to change their stories, and the stories they’re now telling are not true.”

Tarpley is seeking to review text records in the months prior to each person’s respective plea, as well as one month after.

“That would reveal to us the true state of affairs,” Tarpley said.

Mehta asked if there was anything more than speculation.

“Our position is that the statements they gave when they entered their pleas are different from what they gave when they initially were interviewed by the government,” Tarpley said.

“If that’s the case, then you’ve already got their prior inconsistent statements,” Mehta replied.

“That’s true, Your Honor, but we believe there might be Brady material or material that might be exculpatory,” Tarpley said, referring to a prosecutor’s obligation to share evidence or information that may go to a defendant’s innocence.

“Let’s refrain from calling it Brady [material],” the judge said, pausing Tarpley momentarily to point out that he had wrongly characterized the evidence. “The Brady obligation rests with the government … this isn’t Brady, this is evidence that you think is out there that would be helpful to the defense. It’s not under Brady. It’s a different standard.”

Toward the end of the hearing, Mehta considered the issue of possible testimony by Kelly SoRelle, the Oath Keepers lawyer who was recently indicted on conspiracy and document tampering charges in connection with the Jan. 6 Capitol attack.

Defense lawyers said that SoRelle is prepared to testify at the upcoming trial, ostensibly to support an “advice of counsel” defense — essentially, that the Oath Keepers defendants were acting pursuant to the advice of their attorney.

Prosecutors, however, argued that SoRelle was not the personal attorney for the Oath Keepers defendants on Jan. 6, and that she herself had told members in a chat that she was only their “potential attorney.”

Mehta signaled that the issue of SoRelle’s testimony would be resolved during trial.

[Images via FBI court filing, U.S. District Court for the District of Columbia.]