WASHINGTON — Stewart Rhodes never went into the U.S. Capitol building with other protesters on Jan. 6, but he is among a group of people facing the most serious charges to emerge from that day in 2021: seditious conspiracy.
Prosecutors and defense attorneys agree that Rhodes wasn’t among the people who broke windows, attacked Capitol police and stole property from the meeting halls of Congress. But the Yale Law School graduate and founder of the Oath Keepers extremist group called for a “massively bloody revolution” ahead of the protest, according to the government.
The U.S. government will seek to cast Rhodes as ringleader in a plot to keep Joe Biden from his lawful election as president. Prosecutors allege Rhodes led a conspiracy that started with calls for Oath Keepers to reject the election outcome, stoked ideas of “a civil war,” and ended with members of the far-right group breaching the building and engaging in acts of harm to property.
Jury selection started Tuesday after the judge rejected a defense request for a change of venue. The trial is expected to last as long as five weeks.
Defendants say there was no such conspiracy. They plan to argue that they were in Washington to provide security for authorized events and that their actions were in preparation for former President Donald Trump to invoke a law to call in armed forces.
The Justice Department’s investigation into the Capitol attack is considered its most sweeping in history, having netted more than 870 arrests before more recently extending into Trump’s inner circle with dozens of subpoenas. So far, few people have been charged with seditious conspiracy — which effectively alleges a plot against the U.S. government and carries with it a maximum prison sentence of 20 years. In addition to Rhodes, only eight other Oath Keepers as well as members of another far-right group, the Proud Boys, face prosecution on the charge.
The stakes are high on both sides. While defendants may face the rest of their lives in prison if convicted, any acquittals would be a setback in the government’s efforts to hold people accountable for Jan. 6.
“What’s primarily at stake for the government is holding appropriate parties responsible for the Capitol insurrection and, presumably, deterring future insurrections,” said Timothy Zick, a constitutional law professor at William & Mary Law School.
The trial will be a test case for a rarely used charge. Prosecutors plan to use electronic communications and video to convince a jury that defendants intended to stop the lawful transfer of power through their words and actions, including coordination of travel, transporting firearms to the outskirts of Washington and entering the Capitol.
Rhodes has sought to delay the trial and separate himself from the other defendants. In a filing, one of his lawyers claimed that Oath Keepers who entered the Capitol went “off mission.”
“In all honesty, they have different problems than Stewart,” James Bright, a lawyer for Rhodes, said in reference to the other defendants who entered the building. He noted that Rhodes never did anything illegal. “He never entered the building, he never went up the stairs, he never hit anybody, he never told anybody go, go, go,” Bright said.
U.S. District Judge Amit Mehta rejected Rhodes request to separate his case, finding that there’s as much evidence against him as anyone else.
In recent weeks, Rhodes has attempted to delay his trial. He tried to fire his attorneys and replace them with a Louisiana-based counsel named Ed Tarpley, citing a “complete, or near-complete breakdown of communication.” The judge ruled he could bring on Tarpley, but must also keep his other attorneys.
A week later, Rhodes sought another delay, citing a lack of time he had to go through documents and the need for a neutral third party in the case. The judge didn’t buy it, calling the request “mystifying.”
Rhodes’ attorneys expect to argue at trial that his statements were aimed at getting Trump to invoke the Insurrection Act, defend the White House from anticipated left-wing violence and authorize an investigation into voting irregularities in certain states, according to a filing by his attorneys. Rhodes never advocated for the Capitol breach as his “focus” on Jan. 6 was on “four permitted rallies and events outside the Capitol,” according to the filing.
The Insurrection Act of 1807, which was signed into law by Thomas Jefferson, gives the president authority to call on armed forces in certain situations. The government expects to argue that the Oath Keepers used the statute as “legal cover” and would have acted with or without Trump’s help.
At trial, defendants are also likely to argue that they relied on advice from Oath Keeper counsel Kellye SoRelle that preparing for the invocation of the Insurrection Act was lawful. SoRelle, who may testify at trial, also advised that they could legally delete communications about those efforts, according to a defense filing. During Thursday’s hearing, Mehta called it “curious advice.”
While the government hasn’t charged SoRelle with seditious conspiracy, it has brought other counts against her for involvement in the Capitol riot.
Prosecutors expect to call more than 40 witnesses, including six Oath Keepers who pleaded guilty, three of them to seditious conspiracy. Rhodes has sought to subpoena communications to try to show that the witnesses were pressured to plead guilty.
The government’s case against Rhodes and the Oath Keepers benefits from vast amounts of electronic communications and video footage, according to David Sklansky, who teaches criminal law at Stanford University.
“On the other hand, there has never been a seditious conspiracy case brought before where defendants seem to have been egged on by the president of United States,” Sklansky said. “One unknown is how the jury will think about defendants who describe themselves and may think of themselves as acting to defend the United States.”
