When the Oath Keepers go on trial for seditious conspiracy in Washington, DC, this fall, jurors will hear a defense argument that sounds crazy.
As they gathered at the Capitol, 100 strong in their camo-colored tactical gear, they believed President Donald Trump would invoke the Insurrection Act and turn them into his own militia.
Their goal? They said to "stop the Steal," "Defend the President," and "Defeat the Deep State." Trump would become their leader.
Don't wait until January 20, 2021. The leader of the Oath Keepers urged the president in an open letter to strike now.
You have to command us.
James Lee Bright jokes that the Oath Keepers thought they'd be a federal militia. "What do they think?" Bright thinks of them. The guys are insane.
He plans to convince jurors that there were two legitimate reasons for the group to be at the Capitol.
They were invited to be a security force for the rally planners and participants, including Roger Stone.
They were waiting for Trump to make a decision.
The Oath Keepers left the Capitol when those orders didn't come. They collected the weapons and provisions they had stashed in their rooms at the Comfort Inn in Arlington, VA after having dinner at Olive Garden. They went back to their homes.
After failing to get Trump on the phone that night, Rhodes complained that he just wanted to fight.
The prosecutors will tell a different story to the jury.
According to court papers, the Oath Keepers' private chat messages show sedition was their real motivation.
There are references to a Civil War and to using force to oppose the transfer of presidential power in the chats, which is the very definition of seditious conspiracy.
According to the feds, Rhodes oversaw two military-style "stacks" or formations, of Oath Keepers who forcibly breached the Capitol, and that the real reason the group left DC was that the FBI had begun arresting them.
Bright's private practice is located in Dallas.
"It's not my world view," says Bright, speaking to Insider this week about the Oath Keepers' strategy for a 5 to 6 week trial.
He said that the group's hope that Trump would use the Insurrection Act to summon them into federal service against an imagined Biden-Harris "coup" was proven to be true.
If it was invoked, they believed it was legal. It would have been possible.
Which leads to the most eyebrow raising part of the Oath Keepers' defense.
Trump could have federalized the Oath Keepers if the Insurrection Act were written differently.
It's legal until a court steps in and holds it against it, according to Bright.
The experts in the Insurrection Act don't think so.
Joseph Nunn is counsel for the Brennan Center for Justice at NYU Law School.
Nunn admits that there is a separate, archaic federal statute, 10 USC 246, drafted in 1792, the same year as the original Insurrection Act, which still includes as part of a larger definition of militia.
It's a statute Rhodes cites in his writings, and the 57-year-old believes military vets such as himself would be eligible until 65.
Nunn believes that the Oath Keepers are included in the definition. Also included is me. Seniors in high school are included. The gang and the choir are from the university.
Nunn says that it would be possible for the president to invoke the Insurrection Act and call on some group of civilians to act as a militia.
He says that it is not plausible because there is no framework for it. The Uniform Code of Military Justice might apply to the Oath Keepers militia. They could be charged with a crime.
As desperate as he was to stay in power, Trump probably didn't go there because there were people in his ear telling him that he couldn't do things.
Nunn says that there is no world in which the president of the United States would invoke the Insurrection Act.
Is that the case? There are witnesses that say that Trump seized upon moves his legal advisers told him were illegal as he held onto power.
According to a professor of military and constitutional law at Columbia Law School, there are a few other problems that Rhodes didn't think of.
Private paramilitary militias have not been allowed to act as law enforcement in almost all of the states since 1792.
The Insurrection Act of 1956 requires a president to first ask the insurrectionists to leave before using it.
How could that be possible? The Oath Keepers believed that the real insurrectionists were Biden, Harris, and the Communists from China. Would Trump ask the pro- Trump mob to leave or would he ask them to stay put?
The president has never created his own draft under the Insurrection Act or called up civillians.
The militia resources of the states have always been used to accomplish it.
The Insurrection Act is in dire need of a Congressional update that will clarify what a president can and cannot do.
Nunn has written extensively on the topic for the Brennan Center.
It is up to the president to decide if a few hundred guys from the Maryland National Guard should be activated. Is the 1st Armored Division my send-in?
The Oath Keepers' two-pronged sedition defense, that they were at the Capitol as invited rally security, and that they were waiting for the president's orders, is not a convenient, after-thought excuse.
The guys weren't planning this in the shadows. January 6 is when it all started. He says the government has recordings of the Oath Keepers talking about not bringing weapons into the district.
During his presidency, Trump had entertained the idea of using the act against migrants at the southern border, as well as against George Floyd protesters in the summer of 2020.
Did anyone from Trumpworld tell the Oath Keepers that Trump would federalize them or use the Insurrection Act to keep them in office?
Bright says that they are unaware of any direct communications between the Oath Keepers and Trump.
There is a problem with the defense.
If the government tells the jury that the Oath Keepers believed Trump would federalize them, they should assume it.
Wouldn't anything the Oath Keepers did, or planned to do, as an armed, Trump-led militia obeying their Commander-in-Chief's orders, still be considered sedition?
Bright understands that. That is an area of law that we are very interested in. We're interested in that. The argument is expected to be made.
He says it's all complex. It's interesting.
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