The first week of testimony and cross-examination in the seditious conspiracy trial of Oath Keepers militia leader Stewart Rhodes and four associates who joined him at the Jan. 6, 2021, rally hours before the riot at the U.S. Capitol included vastly different depictions of the threat the defendants posed that day.
Prosecutors have presented public declarations by Rhodes and a close adviser as well as dozens of text messages, some sent via encrypted websites, to justify the charge of seditious conspiracy, which the criminal code defines as two or more people conspiring “to overthrow, put down, or to destroy by force the government of the United States, or levy war against them.”
Lawyers for the defendants have sought to raise questions about how aggressive the Oath Keepers' plans and actions on Jan. 6 really turned out to be, and have elicited testimony from at least one Oath Keeper who described his lack of interest in partaking in violence at the Capitol.
Prosecutors called jurors’ attention to a lengthy diatribe posted by Rhodes and his close associate Kelly SoRelle on the Oath Keepers website in December 2020. In it, the defendants encouraged supporters to take up arms to keep then-President Donald Trump in office and to block the certification of the Electoral College vote confirming Joe Biden’s victory over him.
“Show the world who the traitors are and then use the Insurrection Act to drop the hammer on them,” Rhodes told a Dec. 12 pro-Trump rally in Washington. Trump “needs to know from now you are with him. If he does not do it now while he is commander in chief, we are going to have to do it for him, in a much more desperate, much more bloody war. Let’s get it on now.”
In a Dec. 18, 2020, internet posting, Rhodes and SoRelle wrote, “We now face a moment of peril as great, or greater, as what General Washington and his men faced in 1776,” words that prosecutors depicted as an incitement to their followers.
“This is your moment of destiny. Will you take your place in history as the savior of our Republic, right up there with President Washington and Lincoln? Or will you fail to act, while you still can, and leave office on January 20, 2021, leaving We the People to fight a desperate revolution/civil war against an illegitimate usurper and his Chicom [Chinese Communist Party] puppet regime,” the letter continued.
Private, and sometimes encoded, pre-riot message traffic exchanged among Rhodes and his supporters was less formal and more openly aggressive, the prosecution told the jury.
As early as Nov. 5, 2020, two days after the election, Rhodes texted an Oath Keepers group, "We aren't getting through this without a civil war. Too late for that. Prepare your mind, body, spirit."
On Dec. 14, Rhodes told a Georgia Oath Keepers online chat group, “If [Trump} doesn’t use the Insurrection Act to keep a Chicom puppet out of the White House, then we will have to fight a bloody revolution/civil war to defeat the traitors.” Rhodes then went on to cite the case of Samuel Whittemore, a Massachusetts resident who started fighting the American Revolution at age 78. “He was an example of a Dangerous old man ... May there be a thousand Samuel Whittemores, and a Thousand Bunker Hills.”
The next day Rhodes declared to the chat group, “Defy. Nullify. Interpose and defend others and each other.”
“I am sure with all the firepower in our group we have enough to overthrow a small third world country,” one of his followers wrote in response.
In opening arguments, Rhodes’s lawyer Phillip Linder told the jury that while they might not like “some of the things you see defendants did,” by the same token, “defendants did nothing illegal that day. ... What the government is trying to tell us is completely wrong.”
In late December 2020, according to evidence cited by prosecutors, Oath Keepers representatives were in contact with representatives of the Proud Boys, two of whose leaders have pleaded guilty to seditious conspiracy charges, and the Three Percenters, another far-right militia group whose members participated in the Jan. 6 riot.
In a Dec. 22 message, defendant Kelly Meggs said the Oath Keepers planned to have "at least 50-100" members in Washington for Jan. 5 and 6, adding that his group had made contact with representatives of the Proud Boys, who “always have a big group” and could be a “force multiplier.”
On Dec. 29, Brian Ulrich, an Oath Keeper who pleaded guilty to seditious conspiracy charges (as did two other members of the group) and is now cooperating with prosecutors, sent a message advising that some Proud Boys heading for D.C. would be “dressed in their colors” but will “look like Antifa.” That same day, according to prosecutors, defendant Thomas Caldwell sent a message to a member of the Three Percenters expressing an interest in meeting group members.
In the days before the riot, Caldwell messaged others that the Oath Keepers had organized a well-armed “Quick Reaction Force,” but would need one or more boats to ferry them and their weapons, which jurors were told were stored at a Comfort Inn in Arlington, Va., across the Potomac River.
In a Jan. 1 Facebook post, Caldwell wrote, “It begins for real January 5 and 6 in Washington DC when we mobilize in the streets Let them try to certify on Capitol Hill with a million or more patriots on the street. This kettle is set to boil.”
Several thousand Trump supporters attended the president’s speech at the Capitol Ellipse on Jan. 6, and a smaller subset headed for the Capitol and engaged in violence there, among them an Oath Keepers group that an FBI witness testified was smaller than two dozen. Lawyers for the defendants highlighted that number, saying it showed the government was exaggerating the threat posed by the Oath Keepers.
Terry Cummings, a retired Portland, Ore., public transit worker and Oath Keepers member, was called as a prosecution witness and told the jury he learned in late December that the group was planning to travel to Washington for the Jan. 6 rally.
Cummings testified that he brought an AR-15 rifle with him to Washington and a case containing ammunition. Once in the D.C. area, though, he said, he stashed his weapon and ammunition in an Arlington hotel where he was told a Quick Reaction Force would be based. At the hotel, he testified, he had “not seen that many weapons in a location” since serving in the military himself.
After stashing his weapon and ammo, Cummings testified that he moved to a different hotel in Washington itself where he overnighted in a room booked by a fellow Oath Keepers member.
Cummings testified that he attended the Jan. 6 rally at the Ellipse and was admitted to a VIP section near the White House. He left the rally early, he said, to escort an African American woman VIP, who he could not otherwise identify, to the Capitol.
Cummings said that when he got to the Capitol, it seemed to him that the Oath Keepers were not playing a leadership role in the clashes between Trump supporters and police. After dropping off the VIP he and others were escorting, he went to the east side of the Capitol, where at one point Oath Keepers and others set up “stack formations” to breach the building. Cummings testified that he didn’t believe it would be a good idea to enter the Capitol because Vice President Mike Pence was there, and he broke away from his group to find a toilet.
After he returned to the Capitol, he could not immediately find fellow Oath Keepers but eventually ran across Rhodes, who commented on what he said were fumes of CS riot gas. “Suck it up. A little tear gas isn’t any big deal,” Cummings said Rhodes told him.
Caldwell's lawyer David Fischer has argued that inflammatory social media messages posted by defendants were selectively edited to appear incriminating. He told the jury that the Oath Keepers had organized Quick Reaction Forces on multiple occasions before Jan. 6, including during civil disorders in Ferguson, Mo., and Louisville, Ky. He insisted that those forces, which defendants were involved in organizing for Jan. 6, were not in any way designed to attack the U.S. Capitol building.
Cummings said his group returned to their hotel in time to comply with a 6 p.m. curfew imposed by local authorities, and the next morning he headed home. After Jan. 6, he said, he did not participate in any Oath Keepers activities. He testified that during events including his walk to the Capitol, he never heard discussions of any plan to forcefully stop Biden from taking office. Under defense cross-examination, he said he had joined the Oath Keepers after becoming disturbed by riots in Portland staged by the antifa movement and came to believe that local government had practically encouraged the rioters.
Cummings also testified that as he initially made his way to Washington, he heard nothing about a plan to storm the Capitol.
“I would not have continued to D.C. Had I heard of such a plan, I probably would have reported it,” he added.
The trial is expected to continue into mid-November, and Rhodes is expected to testify in his own defense.