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The Radical Legal Defense of the Guardians of the Oath of January 6

On Tuesday, Stewart Rhodes appeared in federal court in front of the US Capitol for the start of jury selection in his trial on charges of seditious conspiracy. Rhodes, the founder of the militant group Oath Keepers, wore a blue suit, glasses and an eyepatch over his left eye, which he lost in a gun accident in the 1990s. He and four co-defendants watched as his attorneys tried to turn down one potential juror after another who expressed leftist political views and skepticism toward the Oathkeepers. Several said they were deeply shocked by the Capitol takeover.

At trial, Rhodes’ lawyers will attempt to sway the jury using an argument rooted in Rhodes’ version of right-wing militancy. The Oath Keepers, they will argue, were not on Capitol Hill to fight law enforcement on Jan. 6, 2021. They were acting more like an extension of law enforcement, awaiting orders from Donald Trump, whom Rhodes had urged to invoke the Law of Insurrection. , to prevent Joe Biden from taking power. He implored Trump to call up members of the Oath Keepers and other armed Americans to serve as part of a militia sanctioned by the president. “When [Rhodes] believed the president would issue an order invoking the Insurrection Act, he was prepared to comply,” his attorneys wrote in a pretrial motion. “The Government would like this Court to believe that this is sedition, when in fact it is the opposite. It is loyalty to an oath made in defense of the fatherland.”

Prosecutors accuse Rhodes of trying to use the vague wording of the Insurrection Act to cover his actions with an appearance of legality. The statute, which combines a series of laws passed between 1792 and 1874, is surprisingly broad. Authorizes the President to summon “the militia or the armed forces, or both, or by any other means,” if the President deems action necessary to suppress “any insurrection, domestic violence, unlawful combination, or conspiracy” that hinders the Execution of federal or state laws or disenfranchisement of individuals. A coalition of advocacy groups He recently recommended to the January 6 Committee that Congress revise the law so that “a would-be autocrat who wishes to carry out an insurrection cannot exploit the law for that purpose.”

Based on information from cooperating witnesses and the fact that the Oathkeepers stored weapons in hotels in Northern Virginia, prosecutors say Rhodes and his co-defendants planned to forcibly block the transfer of presidential power. In a recorded online meeting ahead of a planned protest in November 2020, prosecutors say, Rhodes discussed stationing an armed “quick reaction force,” or QRF, outside of Washington, DC, and claimed that Trump had the power. to invoke the Law of Insurrection and call the armed group to action. “That QRF will be awaiting orders from the President. That is our official position,” Rhodes explained to the group members. “And the reason we have to do it that way is because it gives you legal cover.” Prosecutors rejected the defense’s interpretation of the Insurrection Act as unconstitutional: “no government official, including the president, has the authority to authorize an attack on the Capitol or the government in general.”

If the jury convicts Rhodes and his co-defendants of seditious conspiracy (attempting to overthrow the government or oppose, by force, any execution of its laws or authority), they will face up to twenty years in prison. Rhodes, who has a law degree from Yale, is likely to testify in his own defense.

In the last three years, I have interviewed Rhodes several times. He can be amazing and engaging, but also bellicose when discussions revolve around politics or ideology. He is proud of his law degree, which he received in 2004, after being medically discharged from the military following a parachute accident. After founding Oath Keepers in 2009, he largely abandoned his legal career and was disbarred six years later.

The last time I saw Rhodes was in early January, in a Dallas hotel room, days before his arrest. In the year since the Capitol attack, more than a dozen suspected members or associates of his group had been arrested, and he had been described as “Person One” in the indictments. At least five of the charges he faced were cooperating with Justice Department prosecutors. Perhaps most damagingly, critics on the right, asking why Rhodes had not yet been arrested, began accusing him of being a federal informant. Trump and his Stop the Steal allies had abandoned the Oath Keepers, Rhodes said, and he was struggling to pay his legal bills. I got the feeling that he was anxious about the prospect of going to prison. At the same time, he reflected, being indicted “would probably improve my standing in the Patriot community, frankly.”

After Rhodes’ arrest, Phillip Linder, a respected Dallas attorney, and his partner, James Lee Bright, became his defense attorneys. Sidney Powell, the attorney who spread Trump’s false claims about the 2020 election, allegedly hired Linder and Bright through his new foundation, in addition to paying defense bills for another Oath Keeper indicted along with Rhodes; a senior member of the Proud Boys; and other defendants in the January 6 cases. (Linder told me that he and Bright had no prior relationship with Powell, and that Powell would play no role in his defense of Rhodes.) Last month, Rhodes attempted to replace the two attorneys and delay his trial; DC District Court Judge Amit Mehta denied the motion, but the new attorney Rhodes had selected, Edward Tarpley, joined the defense team. Linder and Bright continue to lead the defense of Rhodes. Opening arguments are expected on Monday.

Linder and Bright will not dispute the key facts found in the Rhodes indictment. Yes, they will say, Rhodes met with other Oathkeepers at the Capitol on January 6. Yes, some of his members entered the building. Yes, Rhodes published two open letters before January 6 urging Donald Trump to invoke the Insurrection Act and use it to summon the Oath Keepers and others to help the then president as what Rhodes called “the militia.” And, yes, Rhodes bought tens of thousands of dollars worth of firearms and other equipment. What they will argue, however, is that these acts weren’t just legal on Rhodes’ part. They were patriots.

To make this case, they plan to present an aspect of Rhodes’ worldview that is poorly understood by those outside of his movement. It focuses on his conception of the Oathkeepers not as “a militia” but as a vanguard of “the militia”: the force of armed Americans, drawn from the general population. Rhodes roots this notion in his reading of the enigmatic militia clause of the Second Amendment: “A well-regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, must not be infringed.” . For the Founders, the militias were established by state statute. Registered citizens could serve in times of need; the militia system was incorporated into the National Guard in 1903.

In Rhodes’s hands, however, the military is an amorphous, self-selected force that, though he denies it, is partisan in nature. This is “the militia” that Rhodes, in his open letters, asked Trump to summon with the Insurrection Act. Before his arrest, Rhodes told me that he was disappointed that Trump had not done this. “I wish Trump had done what I said he should do,” Rhodes said. “Call us, look at the Insurrection Law. He says that he can call; you can use the US military or the state militia, right? That’s us.”

The Oath Keepers and their allies are often called “anti-government” by their critics, but it may be more accurate to say that they want to be the government. Rhodes has long dreamed of a broader militia structure with political and legal sanctions. One of the intended roles of the Oath Keepers is to help make this dream a reality: to prepare and condition the public while they are ready, should such a structure arise, to integrate into it. In meetings where I have seen Rhodes speak, he has urged people not to join the Three Percenters or even the Oath Keepers, but to form their own militias and name them after their towns or counties.

Rhodes’ ideas are influenced by Edwin Vieira, Jr., a Harvard Law School graduate who has written two obscure tomes on the concept of the military, as well as a short book called “thirteen words”, a reference to the opening passage of the Second Amendment. His thesis is that the United States lost its way when it abandoned the universal militia system and that the country needs to enact laws to reconstitute it. He believes that, as in the days of the Founders, every able-bodied citizen should serve in the military. Unrestricted access to standard military weapons is a prerequisite. Vieira promises myriad benefits, including the decline of the military-industrial complex and corruption. However, the militia system appears designed to enforce Vieira’s far-right views. In “Thirteen Words,” he writes that it can “provide all kinds of protection, be it political, economic, social, or even cultural.”

In another of his books, published in 2012, Vieira imagines a scenario in which a US president creates a new militia “in one fell swoop,” invoking the Insurrection Act. Once he has thousands of militiamen “under his personal command,” this hypothetical president could embark on what Vieira calls “the Eight Is Policy: illuminate, investigate, interrogate, implicate, prosecute, indict, incarcerate, and defame”. This prescription echoes the plan that Rhodes promoted before January 6: in addition to asking Trump to use the Insurrection Act to “call out the militia,” including veterans and Americans “still loyal to the Constitution,” Rhodes he also urged him to carry out a “mass declassification” and create a task force to prosecute “all traitors in all branches and all levels”.

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