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Opinion Why Trump might want to pay attention to the Oath Keepers’ trial

Stewart Rhodes, founder of the Oath Keepers, speaks during a rally outside the White House on June 25, 2017. (Susan Walsh/AP)

Prosecutors on Monday laid out their case against Oath Keepers leader Stewart Rhodes and four of his associates, providing a detailed look at how a criminal trial for seditious conspiracy will play out.

Former president Donald Trump should pay close attention. The same legal theory under which Rhodes and his cohorts are being tried might apply to the man they wanted to keep in power in defiance of the election results.

Monday’s proceeding previewed an array of evidence that shows Rhodes and his followers assembled an armed force, led them to the Capitol and, once there, helped direct the mob in a military-style operation. The goal was to prevent Joe Biden from taking office.

The Post reports: “In U.S. District Court in Washington, Assistant U.S. Attorney Jeffrey Nestler highlighted violent rhetoric in Oath Keepers’ text messages, video and recorded conversations from before, during and after the Capitol riot to present the group as bent on keeping President Donald Trump in office ‘by whatever means necessary.’ ” Rhodes, according to Nestler, acted as a “general overlooking the battlefield.” All defendants have pleaded not guilty.

As was the case for Trump, Rhodes immediately went into action once the election was called. In one message, he declared: “If that system declares Biden the winner, I won’t recognize him as the legitimate president because of the fraud.” Of course, Trump was saying much the same thing in plain sight.

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Rhodes’s own language will be used against him, including his statement that “all I see Trump doing is complaining ... so the patriots are taking it into their own hands.” (You know things are going to be rough for a defendant when their lawyer tells the jury it will hear his client say a lot of offensive or “ominous" things.)

It’s also likely that the defense attorneys’ pleas for jurors to consider the “context” of those statements will seem awfully flimsy, given the all vivid images of insurrectionists during the attack. The lawyers, for example, claimed their clients acted “defensively.” We will see how that squares with visual and audio evidence.

Former prosecutor Barbara McQuade tells me: “The lawyer for Stewart Rhodes said in opening statement that Rhodes will testify in his own defense. Court filings indicate that his defense centers around the idea that he was expecting President Trump to invoke the Insurrection Act and call up the Oath Keepers to active military duty on Jan. 6. For Rhodes to pursue this defense, he will have to testify or otherwise present evidence about the basis for this belief. It will be interesting to see whether he is able to connect the Oath Keepers to the former president or any of his associates.” She adds, “If so, he may be able to provide the evidentiary link necessary to charge Trump or others with seditious conspiracy.”

As the prosecutors revealed their case, it was hard not to think about all that happened in the White House as the Oath Keepers planned their mission. The House select committee investigating the Jan. 6 insurrection showed that Trump, who screamed foul about the election even before any votes were cast, promoted lies about voter fraud even as his own aides repeatedly debunked his conspiracy theories. He tried to pressure Georgia election officials to “find” just enough votes to flip the state’s results. And he pressured state lawmakers to reverse their voters’ verdicts by appointing phony electors.

When all that didn’t work, Trump summoned his supporters to D.C. for a “wild” rally. He delivered an incendiary speech to a group that he knew was armed, according to testimony before the Jan. 6 committee. He then instructed them to march to the Capitol (allegedly attempting to join them himself) and sent a tweet declaring that Vice President Mike Pence “didn’t have the courage” to reject electoral votes. He refused to call off the mob for more than three hours.

At issue for Trump in any seditious conspiracy charge would be his knowledge of the violent militias and any coordination or encouragement he provided. Other potential charges include conspiracy to defraud the United States and conspiracy to obstruct an official proceeding, both of which would not require prosecutors to demonstrate Trump’s role in planning or assisting violent conduct.

The government has yet to charge Trump with any crime. But prosecutors must do so if the facts warrant indictment. If no person is above the law, everyone from the foot soldiers of the Jan. 6 attack to the president of the United States should face accountability.

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