Hello hello, OnPolitics readers, it’s Ella!
Yesterday marked the start of the highest-level Capitol riot case so far – that of Oath Keepers founder Stewart Rhodes and four other members of the group, who are all charged with seditious conspiracy – and I was in the courtroom for USA TODAY.
The first day of the jury selection phase found 17 qualified jurors from 29 jurors questioned in court Tuesday.
Jurors were dismissed for reasons like holding strong views against former President Donald Trump, believing that the Oath Keepers are racially prejudiced or believing too fervently that Jan. 6 defendants have been sentenced too harshly.
The court must reach a full pool of 45 qualified jurors, from which 12 jurors and four alternates will be selected. Opening arguments are expected to begin next week.
Novel defense: The Oath Keepers’ trial is made more interesting by an extraordinary legal defense crafted by Rhodes’ attorneys that they claim has never been tested before.
Befitting Rhodes’ personal background as a gruff-talking Yale law school graduate and constitutional scholar, the defense relies on an arcane and controversial interpretation of the Insurrection Act, a statute from the 19th century.
The defense argument boils down to this: If Trump had, indeed, invoked the Insurrection Act, all of the actions taken by Rhodes in planning for the Jan. 6 insurrection would have been legally justified. And because Rhodes sincerely believed Trump was going to do so, he was engaged in activity that was legal, not illegal.
During the court’s lunch break, I caught up with one of Rhodes’ attorneys, James Bright, who told USA TODAY that the powers of the president are “borderline absolute,” which furthers the defense’s argument that if the act was invoked, the Oath Keepers’ actions would have been legal.
“It’s simple in many ways,” Bright said Tuesday. “It’s just never been tried before.”
Will it work?: Legal experts told USA TODAY extremism reporter Will Carless that they don’t see the argument standing up in court.
“It’s an absurd defense,” said Elizabeth Goitein, senior director of the Brennan Center for Justice's Liberty & National Security Program and an expert on the Insurrection Act.
“It’s completely devoid of any merit. The facts of the case make it very clear that Rhodes was planning to act with or without an Insurrection Act Invocation – Rhodes said himself that he was hoping for an invocation so that the attack would have legal cover, but he was planning to go ahead with or without that cover.”
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Handing the baton to Amy, with more top news out of Washington:
Real quick: stories that you'll want to read
Jan. 6 rioter gets over 7 years in prison: Kyle Young, a 38-year-old from Iowa, pleaded guilty in May to assaulting, resisting or impeding a police officer. He is one of several defendants to be charged in the assault of a D.C. police officer.
Senate avoids federal government shutdown: The Senate reached a deal to keep the federal government funded through mid-December, likely avoiding what would have been a partial shutdown starting Saturday, just weeks before the midterm elections. Read more about what was in the deal here.
North Korea tests missiles on eve of Harris trip: North Korea fired two short-range ballistic missiles toward its eastern waters on Wednesday, its neighbors said, a day before U.S. Vice President Kamala Harris is to visit South Korea. Here's what leaders across Asia had to say about the test's timing.
McConnell backs Electoral Count Act: Senate Minority Leader Mitch McConnell endorsed a bill to remove the ambiguity that helped lead to the Jan. 6, 2021, assault on the Capitol by a mob loyal to Donald Trump seeking to halt certification of Joe Biden's presidential victory.
📲 While former President Donald Trump's off of Twitter, here's what he's saying on Truth Social. His embrace of QAnon, including resharing QAnon conspiracy accounts to his social media followers, risks eroding trust in American democracy and, potentially, fostering violence, experts say. -- Ella and Amy
This article originally appeared on USA TODAY: Inside Oath Keeper Stewart Rhodes' trial