Federal prosecutors rested their case Thursday against Oath Keepers founder Stewart Rhodes and four associates charged in the U.S. Capitol attack after presenting nearly five weeks of testimony, videos and text messages they say prove the defendants were behind a violent plot to stop the transfer of presidential power.
The case then turned to the defense, which is preparing to put Rhodes on the witness stand — an enormously risky move that the extremist group leader may see as his only way to escape conviction. Rhodes’ lawyers have signaled that they will rely on an unusual defense strategy with former President Donald Trump at the center.
Defense attorneys typically advise their clients to keep their mouths shut at trial, but Rhodes’ lawyers have said the Oath Keepers leader, who pressed his far-right ideas in fiery speeches and writings before the insurrection, has been insistent since his arrest that his voice be heard in the seditious conspiracy case against him.
In doing so, Rhodes will open himself up to aggressive questioning on cross examination from prosecutors, who will try to provoke him into saying something that will hurt his case or catch him in a lie on the stand.
“There’s always a risk and something to lose when you take the stand,” said Jeffrey Jacobovitz, a white-collar criminal defense attorney in Washington not involved in the Oath Keepers case. But “if you feel like there’s no alternative, that the government has presented an air-tight case or a very strong case, and you don’t have other witnesses that would be helpful, then you have to.”
Prosecutors spent weeks methodically laying out evidence that shows Rhodes and other Oath Keepers discussed the prospect of violence and the need to keep Democrat Joe Biden out of the White House at all costs, before stashing a massive cache of weapons referred to as a “quick reaction force” at a Virginia hotel.
On Jan. 6, 2021, Oath Keepers wearing helmets and other battle gear were seen pushing through the pro-Trump mob and into the Capitol. Rhodes remained outside, like “a general surveying his troops on a battlefield,” a prosecutor told jurors. After the attack, prosecutors say Rhodes and other Oath Keepers celebrated with dinner at an Olive Garden restaurant.
Among prosecutors’ key witnesses were two of Rhodes’ former followers who pleaded guilty in the riot and are cooperating with investigators in the hopes of getting a lighter sentence. One of them told jurors that the Oath Keepers were prepared to stop the certification of Biden’s electoral victory by “any means necessary.”
Three other Oath Keepers who pleaded guilty to seditious conspiracy and struck cooperation deals with prosecutors were notably not put on the stand by prosecutors. It’s unclear why the government decided not to have them testify. The government has the right to introduce rebuttal testimony after the defense rests.
Rhodes and his co-defendants — Kelly Meggs, Jessica Watkins, Kenneth Harrelson and Thomas Caldwell — are the first among hundreds of people arrested in the Capitol riot to stand trial on seditious conspiracy, a rare Civil War-era charge that calls for up to 20 years behind bars. The stakes are high for the Justice Department, which last secured such a conviction at trial nearly 30 years ago, and intends to try two more groups on the charge later this year.
Rhodes’ attorneys have said that his defense will focus on Rhodes’ belief that Trump was going to invoke the Insurrection Act to call up a militia and put down what the extremist group leader viewed as a coup by Democrats.
Rhodes repeatedly called on Trump to invoke the Insurrection Act in the weeks leading up to Jan. 6, but Trump never did. Rhodes’ lawyers say he cannot be found guilty of seditious conspiracy because he was merely lobbying Trump to invoke the law, which gives the president wide discretion to decide when military force is necessary, and what qualifies as military force.
If Rhodes takes the stand, prosecutors will be able to pepper him with questions about messages they say show he was prepared to act regardless of what Trump did. In one message in December 2020, Rhodes wrote that Trump “needs to know that if he fails to act, then we will.”
In their defense, Rhodes’ attorneys are also likely to focus on prosecutors’ lack of evidence of an explicit plan from Rhodes and the Oath Keepers to attack the Capitol before Jan. 6. While cross examining an FBI agent who testified for the government, defense attorney James Lee Bright asked if the agent had seen any orders from Rhodes for Oath Keepers to enter the Capitol.
“No, sir,” the agent responded.
Stanley Woodward, a lawyer for Meggs, also hit that point during his opening arguments Thursday.
“There was no plan. No plan to go into the Capitol building. No plan to stop the certification of the election,” he said. Trump ally Roger Stone had personally invited Meggs to Washington on Jan. 6 and his client was “there to help” do anything rally organizers needed.
At the rally, Meggs was screened as he entered an area protected by the Secret Service to stand yards away from Trump, Woodward said.
As prosecutors wrapped up their case on Wednesday, jurors heard a recording of a meeting between Rhodes and another man days after the insurrection in which Rhodes expressed frustration with Trump for not taking action: “If he’s not going to do the right thing and he’s just gonna let himself be removed illegally then we should have brought rifles,” Rhodes said of the Capitol riot.
“We should have fixed it right then and there. I’d hang (expletive) Pelosi from the lamppost,” Rhodes said, referring to Democratic House Speaker Nancy Pelosi.
One of Rhodes’ lawyers has said his client — a Yale Law School graduate — understands the risks of taking the stand. Rhodes practiced as a lawyer before being disbarred by Montana in 2015 after he was accused of abandoning a client’s case and filing an appearance for a client in an Arizona court without a license to practice there.
In some cases, testifying can work in a defendant’s favor. Last year, Kyle Rittenhouse was acquitted of all charges in Kenosha, Wisconsin, after he testified that he fatally shot two men and wounded another because he feared for his own life.
“It’s high risk, but also high reward,” said Robert Fisher, a Boston defense attorney who isn’t involved with the Oath Keepers case. “If you have a defendant who is very polished … and has a good demeanor and they do well and don’t get upset and don’t lose their patience with a prosecutor, then it can work out well.”
But it’s difficult to know how a defendant is going to perform under pressure when being questioned by a skilled prosecutor until it happens: “Even the most prepared, sophisticated witnesses can have a bad day,” Fisher said.