The Oath Keepers’ trial for their role in the Jan. 6 insurrection kicks off Tuesday. And it’s going to be weird.
That’s because the leader of the far-right militant group, Stewart Rhodes, had a public blow-up with his own lawyers just a couple weeks ago. Now, Rhodes will be fighting for his freedom with an awkwardly divided legal team that has told the judge it’s flat-out not ready.
“Neither Rhodes nor any of his attorneys are prepared for trial,” Rhodes’ new attorney, Edward Tapley, told the judge in September—even though Rhodes was indicted back in January.
Prosecutors allege that Rhodes and four co-conspirators intended to stop the peaceful transfer of presidential power from former President Donald Trump to President Joe Biden on Jan. 6, 2021, by joining in the attack on the Capitol in Washington, D.C.
They’ve been accused of seditious conspiracy, a rare felony defined as an attempt to “overthrow, put down or to destroy by force the government of the United States.”
In response, Rhodes’ lawyers have signaled they plan to raise an unusual defense: that the group believed Trump was about to ask them to intervene in the situation using a centuries-old law called the Insurrection Act.
Whether Rhodes’ attorneys are ready or not, jury selection starts Tuesday. The defendants have all pleaded not guilty. If convicted, the Oath Keepers could spend as long as 20 years in prison.
The Oath Keepers were early supporters in the broader Stop the Steal movement, and Rhodes pushed his group to oppose Biden’s November 2020 win, according to the indictment. Rhodes allegedly attempted to contact Trump on Jan. 6 via an individual who wasn’t named in court documents to try to get the president to call for groups like the Oath Keepers to fight to keep Biden from taking power.
Rhodes, 57, is a former Army paratrooper and a graduate of Yale Law School who founded the Oath Keepers in 2009. The group’s members, largely drawn from the ranks of the military and law enforcement, swear an oath to defend the Constitution from what they view as government overreach—like taking away Americans’ guns or even forcing them into concentration camps, according to the group.
On the day of the Capitol riot, Rhodes entered a restricted area of the grounds and “directed his followers to meet him at the Capitol,” the indictment says. Other members of his group formed a “stack” formation and surged into the Capitol Building, prosecutors allege.
The government has historically struggled with seditious conspiracy cases, according to Brandon Fox, a former federal prosecutor in Los Angeles and now a partner at law firm Jenner & Block.
“The government has failed in the past when the jury hasn’t believed it [the defendants’ rhetoric] was serious—when the jury thought it was bluster and that the people involved weren’t going to do what they said they were going to do,” Fox told VICE News.
The fact that Jan. 6 involved real-life violence at the Capitol, which resulted in several deaths, will help the government show how serious this incident was, Fox said.
The last time the DOJ convicted anyone of seditious conspiracy was in 1995, when the department went after the organizers of the 1993 World Trade Center bombing. That time, the perpetrators were Omar Abdel-Rahman, aka “The Blind Sheikh,” and his co-conspirators.
Yet the DOJ has an advantage in its current case against Rhodes: It’ll be going up against a defense team in chaos.
Rhodes will also be represented by two lawyers he now claims he wants nothing to do with, following a “near-complete breakdown” in their communication, according to one of his lawyers. They’ll be joined at the same table by a newly hired third lawyer, whom Rhodes sought to insert as replacements for the other two in a bizarre and contentious pretrial hearing just a couple weeks ago.
District Court Judge Amit Mehta rebuffed Rhodes’ request to ditch his old lawyers, rejected his attempt to delay trial, and blasted Rhodes’ “incorrect and, frankly, bewildering” justifications for the delay.
The law, originally enacted in 1792 and updated over the following century, gives the president the power to deploy the military domestically and use it for law enforcement—in particular to combat civil disorder, insurrection, or rebellion.
But the provision is controversial and hardly straightforward. Key terms like “insurrection” and “rebellion” are not defined in the text of the law, and it’s in “urgent need of reform,” according to a recent analysis of the Insurrection Act by the Brennan Center for Justice.
On Thursday, Mehta ruled that he would allow the defendants to argue they believed they were taking actions in preparation for Trump to invoke the Insurrection Act. But they can’t state that the president definitively had the authority to invoke the act. “That is a legal question,” Mehta said.
Prosecutors may show the defendants are trying to use the Insurrection Act as “legal cover” for actions they were going to take anyway, Assistant U.S. Attorney Alexandra Hughes told Mehta on Thursday, Bloomberg reported.
“What the government will try to prove is that they knew they were violating the law,” Fox said.
For the DOJ, failure to secure a conviction would be a public face-plant in the department’s attempt to respond to Jan. 6. But it also won’t be their last chance.
Another batch of four individuals linked to the Oath Keepers will go on trial Nov. 29, and high-profile leaders of the far-right Proud Boys will go on trial in mid-December.
Want the best of VICE News straight to your inbox? Sign up here.