Oath Keepers will tell a jury they believed Donald Trump would turn them into his own personal militia on January 6
Laura Italiano Jun 30, 2022, 6:46 PM
When nine accused leaders of the Oath Keepers go on trial this fall to face seditious conspiracy charges for their role in the January 6, 2021, Capitol riot, jurors in the government's first big showcase trial will hear a defense argument that will sound outlandish to many.
Jurors will be told that the far-right extremists believed President Donald Trump would invoke the Insurrection Act as they gathered at the Capitol — 100 strong in their camo-colored tactical gear — and turn them into his own, ultra-loyal federal militia.
Their fantasy mission? To "Stop the Steal," "Defend the President," and "Defeat the Deep State," according to since-deleted rhetoric from their website. A defiant Trump would officially be their commander in chief.
"Do NOT concede, and do NOT wait until January 20, 2021," Inauguration Day. "Strike now," the Oath Keepers leader and founder, Elmer Stewart Rhodes, urged in an open letter to Trump on December 14, 2020.
"You must call us up and command us."
"I just want to fight," federal prosecutors say Rhodes complained after failing to get Trump on the phone that night, like some extremist Pinocchio with a thwarted dream of becoming a real militiaman.
Prosecutors will, of course, tell jurors a different tale.
The Feds argue in court papers that the Oath Keepers' private chat messages show sedition was their real motive.
The chats are full of references to a civil war against "the usurpers" — Joe Biden and Kamala Harris — and to using force to oppose the transfer of presidential power, which is the very definition of seditious conspiracy.
The Feds also argue that Rhodes oversaw two military-style "stacks," or formations, of Oath Keepers who forcibly breached the Capitol — and the real reason the group left DC was because the FBI had begun making arrests.
A far-fetched fantasy
"I don't necessarily understand the mindset of it," Bright, who has a private practice based in Dallas, said.
"It's not my worldview," added Bright, who spoke to Insider this week about the Oath Keepers' strategy for the trial, scheduled to begin September 26 and expected to run five or six weeks.
"But the evidence does exist that these individuals believed in it," he said of the group's hope that Trump would use the Insurrection Act to summon them into federal service against an imagined Biden-Harris "coup."
"They believed that if it was invoked, it was legal," Bright said. "And it would have been legal, arguably."
Which leads to perhaps the most eyebrow-raising part of the Oath Keepers' planned defense.
The Insurrection Act is so broadly written — leaving words like "insurrection," "militia," and "militias of the state" without clear definition — that Trump actually could have federalized the Oath Keepers, Rhodes' lawyers will tell jurors.
"It's so far-fetched, and yet it's legal," at least until a court decides otherwise, Bright said.
Experts on the Insurrection Act disagree.
"While I understand where they got the idea from, what they're saying is mostly nonsense," Joseph Nunn, an attorney for the Brennan Center for Justice at New York University's law school, said.
Nunn said there is a separate, archaic federal statute, 10 USC 246 — drafted in 1792, the same year as the original Insurrection Act — that includes a larger definition of a militia as "all able-bodied males at least 17 years of age" and "under 45 years of age."
It's a statute Rhodes has cited in his writings, though the 57-year-old believes that military vets such as himself would be eligible until age 65.
"That definition plausibly includes the Oath Keepers," Nunn said. "It also includes me. It also includes seniors in high school." It also includes the Crips street gang and the Brigham Young University men's choir.
"So it would be technically possible," Nunn said, "for the president to invoke the Insurrection Act and call on some group of civilians to act as a militia and help the president enforce the law or suppress a rebellion."
But "it's just not plausible," he said. For one, there's no framework for it. Would a federalized Oath Keepers militia be subject to the Uniform Code of Military Justice? Could they be court-martialed?
And ultimately, as desperate as he was to stay in power, Trump didn't go there, most likely because "there were some people in his ear, explaining to him that he couldn't do things," Nunn said.
"There's no world in which it's remotely likely where the president of the United States would invoke the Insurrection Act," Nunn said, "and call on what is fundamentally just a social club of guys who have firearms."
Or is there? The House select committee hearings are producing evidence and witnesses that suggest Trump repeatedly seized upon moves his legal advisors told him were illegal as he clung to power.
There are a few other complications that Rhodes didn't think of, said Michel Paradis, a professor of military and constitutional law at Columbia Law School.
For one, in the centuries since 1792, virtually every state has expressly banned private paramilitary militias from acting as law enforcement in their jurisdictions.
Also, Paradis noted, there's a 1956 revision to the Insurrection Act that requires a president to first ask the insurrectionists to disperse and go home before invoking the act.
How would that even work? The Oath Keepers believed that the real insurrectionists were Biden, Harris, "communists from China," and a shadowy "deep state." Would Trump ask them to disperse, or would he ask the pro-Trump mob that breached the Capitol?
"There's simply no example throughout all of constitutional history of the president ever, essentially, creating his own draft under the Insurrection Act" and calling up civilians, Paradis said.
"It's always been done by drawing upon the militia resources of the states, what we now call the National Guard," he added.
Paradis and Nunn agree that the Insurrection Act is in dire need of a congressional overhaul that would clarify these points and better define what a president can and can't do.
"It leaves totally to the president's discretion what constitutes an insurrection," said Nunn, who has written extensively on the topic
for the Brennan Center.
"And it's largely up to the president to decide, 'Do I need to activate a few hundred guys from the Maryland National Guard? Or do I send in the 1st Armored Division?'" he said.
Wouldn't it still be sedition?
The Oath Keepers' two-pronged sedition defense — that they were at the Capitol as invited rally security, and that they were awaiting the president's orders — is not an afterthought excuse, Bright noted.
"These guys were not planning this in the shadows," he said. "It all predates January 6. The government has recordings of the Oath Keepers discussing not bringing weapons into the district" until Trump gave the OK, he said.
And as president, Trump had flirted aloud with the idea of invoking the act, including against migrants at the southern border in 2019 and against George Floyd protesters in the summer of 2020, although always in the context of calling up the military or National Guard.
But did Trump — or anyone from Trumpworld — give any indication to the Oath Keepers that he would federalize them or invoke the Insurrection Act to stay in office?
"To date, we are unaware of any direct communications that ever took place between the Oath Keepers and Trump, or anyone in his inner circle," Bright said.
There's another problem with the defense: What if the government tells jurors, sure, go ahead and assume the Oath Keepers did believe Trump would federalize them, even absent any encouragement of that from Trumpworld.
Wouldn't anything the Oath Keepers did, or planned to do, as an armed, Trump-led militia obeying their commander in chief's orders as he continued to cling to power, still amount to sedition?
"I understand that," Bright said. "And that is an area of law we are really deeply looking at. We're looking into that. We anticipate that argument being made.
"It's all quite complicated," he added. "And legally, it's fascinating."