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With the historic case that they had brought against Oath Keepers accused of plotting to attack the US Capitol on January 6, 2021, prosecutors framed up how the jury should think about the allegations with an hour-plus opening statement that kicked off the trial in earnest.
Five alleged members of the far-right militia, including its leader Stewart Rhodes, are on trial in Washington DC’s federal courthouse. They have pleaded not guilty to the charge of seditious conspiracy, a charge rarely brought by the Justice Department, and other charges.
The Justice Department’s opening statement featured messages and other communications among the defendants that prosecutors say show the Oath Keepers’ unlawful plotting to disrupt Congress’ certification of President Joe Biden’s electoral win. As the prosecutors sought to use the words of the defendants against them, they also played video capturing the Oath Keepers’ actions in the Capitol and displayed maps and charts to help the jury follow along. Each juror has their own screen to see evidence.
“They said out loud and in writing what they planned to do,” Jeffrey Nestler, an assistant US Attorney, told the jury. “When the opportunity finally presented itself … they sprang into action.”
A lawyer for Rhodes, the first defense attorney to deliver an opening statement told the jurors that they will see evidence that will show that the defendants “had no part in the bulk” of the violence that occurred on January 6.
“You may not like what you see and hear our defendants did,” attorney Phillip Linder said, “but the evidence will show that they didn’t do anything illegal that day.”
Here are takeaways from Monday’s trial so far:
The Justice Department began its opening statement with the accusation that the defendants sought to “stop by any means necessary” the lawful transfer of presidential power, “including taking up arms against the United States government.”
Nestler started with a reference to the “core democratic custom of the routine” transfer of power, which Nestler said stretched back to the time of George Washington.
“These defendants tried to change that history. They concocted a plan for armed rebellion to shatter a bedrock of American democracy,” Nestler said.
The defendants got their opportunity two weeks before the Inauguration, Nestler said.
“If Congress could not meet it could not declare the winner of the election. and that was their goal – to stop by any means necessary the lawful transfer of power, including taking up arms against the United States government,” he said.
He said the defendants descended on DC to attack “not just the Capitol, not just our government, not just DC, but our country itself.”
During the Justice Department’s opening, the jury was presented with video footage, maps and other audio-visual tools that prosecutors used to give an overview of their case.
Nestler’s presentation included iPhone footage from the attack that the prosecutor used to identify the defendants and other alleged co-conspirators. When video showing defendant Kelly Meggs was presented, Nestler noted the patch he wore, which said, according to Nestler: “I don’t believe in anything, I’m just here for the violence.”
As the video clips played, the jury also saw a map of the Capitol that Nestler used to situate the action that was recorded by video. Nestler also had a physical chart, perched on an easel in the courtroom, listing out the alleged co-conspirators.
Jurors were also presented with the messages that the defendants allegedly sent in the weeks after the election, including their calls for a violent response to former President Donald Trump’s loss.
“Its easy to chat here. The real question is who’s willing to DIE” Meggs wrote in one message shown by prosecutors.
The DOJ also showed video and photographs of the Oath Keepers participating in tactical training sessions. A map of the Washington Mall – showing the site of the rally that preceded the Capitol attack and its distance from the Capitol – was presented while Nestler ticked through communications, including on the walkie talk app Zello, between the defendants that allegedly occurred that day.
Nestler used the opening arguments to also preview how the Justice Department will respond to defenses the Oath Keepers’ attorneys are expected to put forward.
“There is evidence that you will hear that they had more than one reason to be here in DC, in addition to attacking Congress,” the prosecutor said. The defendants may have been planning to attend the rally near the White House earlier in the day, Nestler noted, but so did thousands of others. Nestler also referenced to potential attempts by the defense to argue the Oath Keepers were preparing to come to DC to serve as security, noting that the defendants weren’t licensed, trained or paid for their security work.
“Even being bad security guards isn’t itself illegal.” Nestler said. However, according to the prosecutor, the goal they were actually preparing for was “unlawful.”
Additionally, Nestler alluded to the belief that Trump was going to invoke the Insurrection Act; the defense has signaled it plans to argue that the Oath Keepers were preparing to respond to such an invocation.
“President Trump did not invoke the Insurrection Act,” Nestler said. “These defendants needed to take matters into their own hands. They needed to activate the plan they had agreed on.”
The Justice Department also emphasized the backgrounds of some of the defendants and how that fit into the department’s theory of the case. Rhodes, as Nestler repeatedly noted, is a graduate of Yale Law school. He knew to be careful with his words and told his co-conspirators to be careful with theirs, Nestler said.
Thomas Caldwell, another defendant, served in the military, Nestler said. “Based on that water experience, he planned to use boats to get across the Potomac.”
The Justice Department detailed the preparations the Oath Keepers allegedly undertook before January 6 as well as what they’re accusing the defendants of doing during the Capitol breach.
In December 2020, Rhodes told others that January 6 presented a “hard constitutional deadline,” according to prosecutors, and that they would need to “do it ourselves” if Trump didn’t stop the certification of the election.
“With time, as their options dwindled and it became more and more likely that power would be transferred,” Nestler said Monday, “these defendants became more and more desperate and more and more focused on that date that Rhodes referred to as a constitutional deadline.”
According to Nestler, the group organized a caravan of Florida members to drive up to Washington for January 6, and made preparations for where the organization could store firearms in Virginia, just outside DC. Some members of the group, according to prosecutors, brought weapons into DC that day, including chemical spray, thick pieces of wood, dressed in paramilitary gear.
Nestler’s opening described the “stack” formations the defendants allegedly used to enter the Capitol. He played a video of defendant Jessica Watkins, who allegedly led the first group, pushing against a crowd outside the House chamber shouting “push, push, push! Get in there, they can’t hold us.”
The second group positioned themselves outside of a suite of offices belonging to House Speaker Nancy Pelosi, Nestler said. Nestler said that Meggs had a “keen interest in Speaker Pelosi,” and later told associates that “we looked for her.”
At first, the defendants saw the breach as a success, Nestler said, describing them as “elated,” “boastful” and “proud.” But, according to DOJ’s account, the defendants quickly realized they were in legal jeopardy, and instructed one another to flee town, delete messages and keep quiet.
“Let me put it in infantry speak: SHUT THE F**K UP,” Rhodes said in one Signal message, as presented by prosecutors.
Even with their criminal exposure, Nestler said, Rhodes continued to plot. On January 10, Rhodes met with someone in Texas to try and get a message to former President Trump. The meeting, which had not previously been reported, was secretly recorded by an attendee.
“My only regret is that they should have brought rifles… we could have fixed it right then and there.” Rhodes said of January 6, according to the Justice Department’s opening.
Rhodes attorney Linder told the jurors that they will see evidence that will show that defendants “had no part in the bulk” of the violence that occurred on January 6.
He suggested that there will be gaps in the evidence, such as video, that the Justice Department will show the jury. He said that, once the prosecutors put on their case, the defense will fill in those gaps.
“You may not like what you see and hear our defendants did, but the evidence will show that they didn’t do anything illegal that day,” Linder said.
As the defense attorney delivered his opening, he was told by the judge to avoid topics that had been deemed out of bounds for the trial – with at one point, Judge Amit Mehta bringing him up to the bench for a private discussion.
Among the off-limits topics brought up by Linder that prompted the interventions were comments about the amount prison time the charges bring, the congressional narrative around January 6, remarks about defendants sitting in jail, and certain details about the Insurrection Act.
Mehta told Linder to keep his opening within the parameters of the relevant subject matter that has been established before the trial.
Linder went on to preview other aspects of the Oath Keepers’ defense.
“The real evidence is going to show you that our clients were there to do security for events for the 5th and the 6th,” Linder said, while calling his client a “extremely patriotic” and a “constitutional expert.”
“Stewart Rhodes meant no harm to the Capitol that day,” Linder said, as he described some of the rhetoric among the defendants “free speech and bravado.”
The attorney said that the evidence will show that there was no plan like the one that the Justice Department is alleging.
Linder said that Rhodes is planning to testify in his own defense to explain what he believed would happen on January 6. At least one cooperating Oath Keeper, William Todd Wilson, is also scheduled to testify during the trial, Linder said Monday. Linder said that he intends to ask Wilson about his plea agreement, including an allegation that Wilson witnessed Rhodes attempt to contact Trump on the evening of January 6.
Linder suggested that allegation, which was sworn in Wilson’s plea agreement, was untrue.
David Fischer, the attorney for Caldwell, zeroed in on how the Justice Department is pointing to the so-called QRF – a military term for Quick Reaction Force – that Caldwell allegedly organized that day.
He stressed the word “reaction” in that term, and said that QRFs are organized to respond “to emergency situations,” describing a QRF as “a break the glass emergency team.”
Of the hundreds of witnesses, including several Oath Keepers, that the Justice Department has interviewed in its investigation, “not one single solitary person they have interview[ed] has said that the QRF was meant to attack the United States Capitol,” Fischer said. He ticked off other events, including protests taking place in other states across the country, where the Oath Keepers organized QRFs.
The seditious conspiracy charge from DOJ addresses agreements to hinder the government’s ability to conduct its business, and Fischer previewed for the jury a defense that would argue that the Justice Department had not proven Caldwell organized the QRF with that goal in mind.
Fischer also launched an extensive critique of how the FBI handled its investigation into his client, calling what happened to Caldwell and his wife “an absolute outrage.” Fischer said that the Facebook messages the FBI used to justify Caldwell’s arrest were actually lines from the movie “The Princess Bride.”
“There was some other powerful evidence … the agent had an issue with a Facebook message that said … ‘I’m such an instigator’ … he also said ‘storming the castle,’” Fischer said.
“The evidence is going to show that those phrases in context were” lines from ‘The Princess Bride,’” he added.
Jonathan Crisp, an attorney for Watkins, made similar assertions about the QRF, and he told the jury that the Justice Department’s case against his client was missing context in other respects.
“The Zello chats sound incredibly damming if you listen to them in a vacuum,” he said, while suggesting to the jury that his client did not hear a lot of what was said on the walkie talkie application through the noise of the riot. He also pointed to her attempts to engage the FBI in its investigation
“These are not the actions of somebody who was trying to overthrow the government.”
The first prosecution witness, FBI agent Michael Palian, testified that he witnessed senators crying as they hid from rioters who entered the Capitol on January 6.
Palian is one of the lead case agents who investigated the Oath Keepers during the course of the almost two-year investigation.
Palian told the jury that on January 6, he was sent to the Capitol in the late afternoon and assigned to guard a group of over 80 senators sheltering in the Capitol complex.
“It was chaotic,” Palian said of the scene when he arrived. “I think shock would be the best word to describe what the senators were feeling. There was some crying.”
“Did you actually witness senators, or members of Congress, crying?” prosecutor Kathryn Rakoczy asked.
“I did,” Palian said.
Palian and approximately 70 other agents escorted senators back to the Senate chamber later that night where they resumed counting electoral college votes, he testified. Inside the Capitol, “it looked like a bomb had gone off,” Palian said, recounting “windows broken, doors broken, lots of debris in the hallways” to the jury.
“If you took your mask off you started to inhale the pepper spray,” Palian said.
Early into Monday’s proceedings, before the jury was brought in, Mehta went to great lengths to emphasize that the jury had “no preconceived” prejudices towards the Oath Keepers and the defendants specifically.
He did so while explaining why he was denying a request from the defendants that the case be transferred to Virginia. Mehta ticked through statistics from the jury selection process that shed light on how the jurors had responded to questions meant to test their impartiality.
None of them reported having strong feelings against January 6 that would affect their ability to be fair. While about half of the jurors said they had heard of the Oath Keepers before, none of them reported having strong feelings about Oath Keepers that would threaten the jurors’ impartiality, nor had any of the jurors heard of the specific defendants, according to Mehta’s account of their answers on the jury questionnaire.
“What that means is voir dire has done its job,” Mehta said, referring to the jury selection process.
This story has been updated with additional details.
