AP

Prosecution rests, Oath Keepers 1/6 case turns to defense

Nov 3, 2022, 9:42 AM | Updated: 2:33 pm

WASHINGTON (AP) — 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.

____

Richer reported from Boston. Associated Press reporter Michael Kunzelman in Washington contributed to this report.

___

Follow AP’s coverage of Jan. 6 at https://apnews.com/hub/capitol-siege

Copyright © The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

AP

Arizona and New York attorneys feud over extraditing suspect...

Associated Press

Why Alvin Bragg and Rachel Mitchell are fighting over extraditing suspect in New York hotel killing

Maricopa County Attorney Rachel Mitchell says she isn't into extraditing a suspect due to her lack of faith in Manhattan’s top prosecutor.

4 days ago

A Gila monster is displayed at the Woodland Park Zoo in Seattle, Dec. 14, 2018. A 34-year-old Color...

Associated Press

Colorado man dies after being bitten by pet Gila monster

A Colorado man has died after being bitten by his pet Gila monster in what would be a rare death by one of the desert lizards if the creature's venom turns out to have been the cause.

5 days ago

Police clear the area following a shooting at the Kansas City Chiefs NFL football Super Bowl celebr...

Associated Press

1 dead, many wounded after shooting at Kansas City Chiefs’ Super Bowl victory parade

One person died after 22 people were hit by gunfire in a shooting at the end of the Kansas Chiefs' Super Bowl victory celebration Wednesday.

12 days ago

This image from House Television shows House Speaker Mike Johnson of La., banging the gavel after h...

Associated Press

GOP-led House impeaches Homeland Security Secretary Mayorkas — by one vote — over border management

Having failed to impeach Homeland Security Secretary Alejandro Mayorkas the first time, House Republicans are determined to try again Tuesday.

13 days ago

Defense Secretary Lloyd Austin, right, and Kenya's Defense Minister Aden Duale, left, listen during...

Associated Press

Defense Secretary Lloyd Austin hospitalized with bladder issue

Defense Secretary Lloyd Austin has been hospitalized following symptoms pointing to an “emergent bladder issue."

15 days ago

Joel Osteen, the pastor of Lakewood Church, stands with his wife, Victoria Osteen, as he conducts a...

Associated Press

Woman firing rifle killed by 2 off-duty officers at Houston’s Lakewood Church run by Joel Osteen

A woman entered the Texas megachurch of Joel Osteen and started shooting with a rifle Sunday and was killed by two off-duty officers.

15 days ago

Sponsored Articles

...

DISC Desert Institute for Spine Care

Sciatica pain is treatable but surgery may be required

Sciatica pain is one of the most common ailments a person can face, and if not taken seriously, it could become one of the most harmful.

...

Collins Comfort Masters

Here’s 1 way to ensure your family is drinking safe water

Water is maybe one of the most important resources in our lives, and especially if you have kids, you want them to have access to safe water.

...

Canvas Annuity

Interest rates may have peaked. Should you buy a CD, high-yield savings account, or a fixed annuity?

Interest rates are the highest they’ve been in decades, and it looks like the Fed has paused hikes. This may be the best time to lock in rates for long-term, low-risk financial products like fixed annuities.

Prosecution rests, Oath Keepers 1/6 case turns to defense