The Daily - A Landmark Jan. 6 Verdict

Episode Date: December 1, 2022

In a landmark verdict, a jury convicted Stewart Rhodes, leader of the Oath Keepers, a right-wing militia, of sedition for his role in the Jan. 6 assault on the U.S. Capitol.The charge he faced, seditious conspiracy, is one that can be traced to the American Civil War. How did federal prosecutors make their case, and what does the verdict tell us about just how organized the attack really was?Guest: Alan Feuer, a reporter covering courts and criminal justice for The New York Times.Background reading: A jury in federal court in Washington convicted Mr. Rhodes and one of his subordinates for a plot to keep Donald Trump in power.The outcome of the trial was a signal victory for the Justice Department and could hold lessons for future Jan. 6 cases. For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. 

From The New York Times, I'm Michael Barbaro. This is The Daily. In a landmark verdict a few days ago, a jury convicted the leader of a right-wing militia group of sedition for his role in the January 6th assault on the U.S. Capitol. Today, I speak with my colleague, Alan Foyer, about how federal prosecutors made their case and what the verdict tells us about just how organized the attack really was. It's Thursday, December 1st. many of those as possible who carried out the actual attack. So why did this case, this trial

of Stuart Rhodes and the organization he runs, Oath Keepers, why did it matter so much? Well, I mean, look, you're absolutely right, Michael. There have been a lot of cases stemming from January 6th, but the Oath Keepers were absolutely central to what unfolded at the Capitol that day. And the charges that Stuart Rhodes and four other members of the Oath Keepers were facing in this case, these were the most serious out of any of the 900 criminal cases that the Justice Department has brought so far. You know, in fact, this case was the first time that a jury was asked to consider the charge of seditious conspiracy. And explain that charge.

I mean, it sounds very serious, but just on a technical level, what that means. Sure. Well, first of all, just as a baseline, it's not a small-time charge, right? It's not trespassing. It's not even assault. It is effectively a political conspiracy. And it stems back to the Civil War when the North was looking for ways to effectively protect the U.S. government against the secessionist rebels. So over the years, seditious conspiracy has been used

against a bunch of different defendants, all that have a kind of political context to them. In the Oath Keepers case, the prosecutors had a very specific goal in order to prove seditious conspiracy. They had to persuade the jury that Rhodes and the Oath Keepers plotted to use force, physical force, to stop the execution of a federal law. And for the purposes of this trial, the laws that were in question were those that governed the transfer of power from one president to the next.

People think seditious conspiracy and, oh, that means, like, overthrow the government. And, like, that's an element of this. But the Oath Keepers were actually charged under, like, a separate subsection, which just said they had to use force to stop the execution of federal laws. And Michael, the force part is like central to what makes this seditious conspiracy, right?

And we'll get to kind of how that force played out during the trial. Got it. But before we jump into the trial, Alan, remind us of Stuart Rhodes' path, and really the path of the Oath Keepers, to the Capitol on January 6th. The story that kind of helps us understand how both of them play a role that day. Sure. Well, Rhodes is a very unusual figure. He was a former Army paratrooper who ultimately got out of the service and got a law degree from Yale. We're here with Stuart Rhodes, the founder of Oath Keepers, and he's currently writing a book on the dangers of applying the laws of war on the American people.

So he's at Yale essentially during 9-11 and the extraordinary months that follow it. Back when I was a student at Yale Law School, I wrote a paper on the application of the laws of war to American citizens. When the administration of George W. Bush starts using these wild tools under the rubric of keeping America safe, right? They get the Patriot Act passed. They have increased surveillance of the American population. And I could see this coming a long time ago because this is not like I had left field. This is nothing new. They're doing extraordinary renditions where they're snatching suspects all over the globe and taking them to secret prisons basically to interrogate and sometimes torture them.

Even though Congress only said use of force, the Bush administration interpreted that as opening up the window to do everything else. And they interpreted that as meaning they can do it to U.S. citizens, and they did. And Rhodes is really skeptical of this, and he starts to develop this deep philosophical distrust, even loathing, I would say, of the government and its extraordinary use of powers against individual citizens. So when he gets out of law school, he ends up making his way to, of all places, Capitol Hill, and he gets a job in the congressional office of a libertarian congressman from Texas, Ron Paul. And it's kind of in the ferment of those libertarian ideas and these anti-government ideas that he founds this group called the Oath Keepers in 2009. And their main recruiting pool is former and current law enforcement officers and military personnel. Rhodes wants those people to uphold their oath to the Constitution.

The whole point of the Oath Keepers at first is to draw a line in the sand against illegal orders from the government by people who have the training and power to resist the government. And so he starts getting his group involved in these kind of high-profile disputes between individuals and the government. You know, probably the most famous early mission he puts the Oath Keepers on is he sends them down to Nevada, where a rancher down there named Cliven Bundy is having this wild dispute with the Bureau of Land Management, which ultimately erupts into an armed standoff between the Oath Keepers and other so-called militia people and federal agents, right? And so he does this over the course of like

three, four years, really through the teens, until there's this big pivot. And the pivot happens when Donald Trump comes into office. And why is that a big pivot for him? So, Rhodes and Trump share common enemies, so to speak. They both sort of believe in this idea of a deep state that controls the country. And they both find that the government itself is a malicious entity. And of course, as Trump's time in office goes on, they both come to resent the burgeoning Black Lives Matter movement, is a malicious entity. And of course, as Trump's time in office goes on, they both come to resent the burgeoning Black Lives Matter movement,

you know, in which law and order and the idea of police authority is itself questioned. And of course, Trump's time in office is marked by a lot of public protests, which kind of culminates, right, in 2020 with the racial justice protests that erupt following the murder of George Floyd in Minneapolis. And so what the Oath Keepers start to do is to insert themselves into these chaotic scenes of protest as sort of protectors, not of

the protesters, but of the communities around them, right? So they, you know, they go down to Louisville, Kentucky, when unrest emerges there in the wake of the killing of Breonna Taylor. And they are armed in body armor on the street, allegedly protecting residents and businesses. Got it. So like, it's this weird idea that the Oath Keepers go from an anti-government

organization to kind of like what you could talk about as a pro-government organization under Trump. Right. And so ultimately, that alignment between Rhodes and Trump becomes absolutely central to the prosecution's argument at the trial and to the claim that Rhodes committed a seditious conspiracy. So, Alan, describe the evidence that the prosecution brings to this trial in attempting to convince a jury that Stuart Rhodes has committed seditious conspiracy. Sure. has committed seditious conspiracy. Sure.

So the government begins its story with the 2020 election and how the Oath Keepers just did not believe that Joe Biden had legitimately been elected president. And effectively, from the moment that Biden's victory is announced, right, prosecutors say that Rhodes and the Oath Keepers came up with a plan to make sure Biden never took power. And that plan ultimately reached its culmination on January 6th at the Capitol. So one of the ways that they start laying out their case is they have a video of a conference call that Rhodes conducted with a bunch of his Oathkeeper subordinates. It's November 9th. Well, you know, if you manage to crawl into the White House, it'd be a puppet. But my message would be we're not going to let that happen. It's November 9th. It's literally two days after all the media organizations called the election for Joe Biden.

They cheated enough this time. And they kept cheating. That's why they kept closing down the counting. They couldn't go find more votes. So they just kept on counting until, you know, supposedly they won. And he's saying, oh, no, no. These results that Joe Biden won are wrong. It's fake. The election was rigged.

They're going to steal it. The only way to really stop them is for Trump to, first of all, refuse to concede. He lays out a whole series of things that the Oath Keepers must do to stop Biden from taking office. Get out there now and go in the streets of D.C. and make sure this president knows you've got his back and urge him and push him to stand up and take this place of ministry. But if you don't, guys, you're going

to be in a bloody, bloody civil war. Including that they might need to effectively foment bloody civil war to keep Biden out of office. And so there's a guy, an Oathkeeper member from West Virginia, who's on this video call, and he's frankly freaked out by what he's hearing.

So he starts recording it on his cell phone, and he sends the recording of the video to the FBI's terrorism tip line. So on this tape, there is a clear declaration of motive from Stuart Rhodes. What do the government prosecutors say at the trial about what Rhodes planned to actually do to fulfill that threat. Right. So the government has all of these text messages, too, between Rhodes and his lieutenants. And in the messages, Rhodes is talking constantly about not allowing Biden to take office. But he also talked about if Trump wasn't going to do the hard work to stay in office on his own, then the Oath Keepers were going to have to essentially do it for him. And he talks about

how like they might have to just get their rifles out and do it. So throughout the post-election period, right, there's this steady drumbeat of Rhodes talking and talking and talking about Biden out, Trump in. Got it. But so far, everything you're describing is pretty much talk. Yes, that is correct. The one thing that the government points to, remember when we were talking about force being the central element to the seditious conspiracy trial? So in the run-up to January 6th,

Rhodes decides that he is going to station what he calls a quick reaction force of Oath Keepers at a hotel in Arlington, Virginia. Just across the Potomac River from D.C. Minutes from downtown D.C., right? And that this quick reaction force is going to stand guard over a large storehouse of heavy weapons. And the idea is that they are waiting, effectively, for a bat signal from Donald Trump to spring into action under specific, special circumstances. Huh, and what are those circumstances?

So the circumstances were this. Rhodes, really since the election had taken place, had been trying to get Trump to invoke this two centuries old law called the Insurrection Act. This is something that basically goes back to like the Whiskey Rebellion in the wake of the Revolutionary War. And the idea is that the Insurrection Act will legalize the summoning up of armed militias. are not legal, and sort of be deputized as Trump's personal guard against this supposed coup that Stuart Rhodes thinks is rising up to crush Trump. Got it. So here is a very clear plan for the use of force. Force, as you said, being the key word and the key factor in making the seditious conspiracy case. Yes, but interestingly enough, the bat signal— Never comes.

Never comes, right? Trump does not invoke the Insurrection Act. So the government ends up focusing at the trial on what Rhodes and the Oath Keepers actually did do on January 6th. Right. And how is that portrayed in this trial by the prosecution? You know, essentially from Rhodes' perspective, Rhodes never goes inside the building on January 6th. Interesting. The government describes him as the general surveying his battlefield, right? He's standing there making a ton of calls and sending a ton of text messages to all of his people who are sort of around the Capitol grounds. And at one key moment,

which the prosecution homed in on, he makes this three-way call to two of his top lieutenants, who are his kind of ground commanders that day. And within minutes of that call, which was not recorded, and we don't know what was said in it, one of these guys leads a column of Oath Keepers into the crowd and into the Capitol building itself. The clear inference being that that's only the kind of thing a general does when their commander tells them to,

and it just so happens their commander was on the phone with them. Right. It is not conclusive evidence, but it is the best evidence that the government was able to present that Rhodes played a direct role in kind of field-marshalling the storming of the building. Got it. And of course, as we know from you and our colleagues, the Oath Keepers play a very big role in entering the Capitol

and seemingly organizing regular people around them to enter with them. So we know that they are responsible for a meaningful dimension of the assault on the Capitol. Yes, yes. Two full, what they called military-style stacks of Oath Keepers breached the building that day. Got it.

So to summarize the prosecution's case, in ways it feels quite strong, right? There's communication that seems to lead to action in the Capitol, and Rhodes is at the center of that. to action in the Capitol, and Rhodes is at the center of that. But in another significant way, it doesn't seem so strong because Rhodes' vision of all those weapons stockpiled in Arlington getting used to stop a transfer of power, that never happens because he never gets the bat signal from Trump because Trump never invoked that law.

So is this feeling like a slam dunk prosecution or something a little more mixed? Well, that was one of the most interesting things about the prosecution's case. There was this astonishing amount of evidence. I mean, the government investigated Rhodes and the Oath Keepers for 20 months before going into trial, right? They had tens of thousands of encrypted communications from their cell phones. They did interviews with scores of former Oath Keepers. But no, they did not, at the end of the day, have a smoking gun. And so that allowed Rhodes and his co-defendants to mount a defense that really did seem to resonate with the jurors.

We'll be right back. So what was the defense's strategy several separate arguments, all of which could be found during Stuart Rhodes' time on the witness stand where he testified in his own defense. One of the first things he did was he sought to recast the bad reputation of the Oath Keepers. You know, they're known as this kind of white nationalist militia group. And he tried on the witness stand to, you know, really paint the Oath Keepers as this peacekeeping force that went to pro-Trump rallies, you know, after the election to protect people as they were walking back to their cars from, you know, what he saw as like violent leftist counter protesters. And they protected kind of dignitaries who were at these pro-Trump events. And of course, they did the same thing on January 6th. They had arrangements to serve as bodyguards for pro-Trump VIPs like Roger Stone and Ali Alexander, the Stop the Steal organizer,

and Alex Jones, the guy from Infowars, who was also at the rally. So in this defense, they are never provokers, they are bystanders and protectors. Not only that, it's an alibi in advance for why they were in Washington on January 6th. He also kind of brought up this argument on the witness stand. And I should just say, the fact that he took the witness stand at all was a very unusual and risky maneuver. Right. Most criminal defendants don't. Don't do that.

Stuart Rhodes, he went to Yale. He likes to think that, you know, he knows what he's doing and he did what he wanted during this trial. And part of that was taking the stand, right? So, you know, he was confronted with all of these horrifically seditious sounding messages that he had typed out and these, you know, letters that he had posted on the Oath Keepers website. So he kind of admitted, hey, I'm a hothead. I'm bombastic. I can't control myself all the time. I say crazy things.

But look, saying crazy things doesn't mean that the Oath Keepers had a plan to storm the Capitol on January 6th, let alone a kind of broader vision of trying to stop Joe Biden from entering the White House. Right. Bombast is not planned. Bombast is not planned. And then when he had to kind of grapple with the facts of what he did on the ground that day, he kind of filled in the story of his January 6th. Like, you know, at one point, as the Capitol is being breached, he's actually not at the building at that point. He got out of the cold

and he went to eat chicken wings at the nearby apartment of a friend. But as the violence starts to unfold, he goes back to the Capitol, right? And that's when he's on the phone in this call that the government portrayed as key to the Oath Keepers going into the building. And he's saying, like, that call never actually connected. The government confronted him with a bunch of text messages in which he was sort of calling his people to join him at the Capitol from their far-flung bodyguarding duties. him at the Capitol from their far-flung bodyguarding duties. And of course, the prosecutors are like, so you brought people to the riot? That's a bit suspicious. And he's like, no,

I wasn't bringing them to the riot. I was bringing them to me because I'm the leader, right? That was kind of how he dealt with the mountain of evidence that was introduced against him. mountain of evidence that was introduced against him. So Rhodes is saying to the jury, I'm not orchestrating a plan to do much of anything. I'm watching and I'm talking to my colleagues, my fellow oath keepers at the Capitol, kind of nothing to see here. But what about all those guns that he had stashed in that hotel room across the river? How does he contend with that seemingly very problematic piece of evidence? He kind of had two slightly contradictory answers. He said, really, for the first time that I had ever heard him say this, that he had nothing to do

with the weapons that were stashed in the hotel room in Virginia. The only problem was the prosecutors had a bunch of text messages where he's talking to his lieutenants about these weapons, right? And in fact, there were so many guns in this suite of hotels that a government witness, a former Oath Keeper who had been in the military for years, said he had never seen so many weapons in one place at one time. You know. But the way he really tried to get himself around the issue of the weapons was to talk about this bat signal from Trump that we mentioned before, right? That, hey, the weapons were never used because Trump never invoked the Insurrection Act. because Trump never invoked the Insurrection Act. And if he had invoked the Insurrection Act,

then we would not have been committing seditious conspiracy by bringing our weapons from Virginia into Washington in an effort to stop the lawful transfer of power. We would have been bringing our weapons into Washington to support the authority of the government, like the exact opposite of seditious conspiracy. So he kind of like turned the idea of seditious conspiracy with regard to the weapons on its head. Right. After saying he has no role in putting this stash of guns where they are, he says that if they were to be used, they were only going to be used in the service of defending the president when the president asked to be defended. So how could their theoretical use ever be seen as seditious?

In fact, he's characterizing it as potentially patriotic. Yes. A little darkly brilliant in its way, that argument. Okay. So then we get the verdict. We got the verdict on Tuesday night. It came after three full days of deliberation. days of deliberation. And what the jury found was this, that Rhodes and one of his top guys on the ground that day were indeed guilty of seditious conspiracy, which is to say, the jury believed the idea that there was this kind of sweeping, weeks-long plan that reached starting after the election, you know, to stop Joe Biden from taking office and to disrupt the peaceful transfer of presidential power. But the jury acquitted him of another conspiracy count, which had accused him of planning in advance to disrupt the proceedings inside the Capitol on January 6th

meant to be the final certification of the election. Hmm. Well, just kind of cut through that because it clearly feels a little contradictory. Yeah. So the way I understand it is this. The jury didn't quite believe that there was advanced planning to storm the Capitol per se, but they did see the storming of the Capitol as part of a much broader plot. So if the goal is stop Joe Biden from taking office, there's lots of things you can do. You can get Trump to invoke the Insurrection Act and call up the militia, or you can just have Trump dig his feet in and not leave the building.

Or on January 6th, as the crowd is getting unruly, as chaos is starting to erupt, you can opportunistically seize the moment and send your troops into that building where members of Congress are certifying Joe Biden's victory and disrupt it. So the jury believed that Rhodes kind of had this big overarching plot.

But if you kind of read the tea leaves on the verdicts, they didn't quite see the plot to storm the Capitol as something that had been in his mind forever, which kind of makes sense in a way. Because in November and early December of 2020, no one really had any idea that January 6th was going to be a thing. The January 6th rally only comes into being a little closer to the day itself. Got it. So the jury is being pretty nuanced here and saying to Stuart Rhodes, your big plot that involved the Insurrection Act, that kind of fizzled, Trump never summoned you, but your plot kind of morphed and turned into the January 6th assault

on the Capitol in which hundreds of rioters entered by force, keyword from earlier in our conversation, and Rhodes played a role in that. Yeah, I would actually just fine-tune it like this, that the guns stashed across the river in Virginia were the most important element in this plot that suggested that the group wanted or was ready to use force, even if they didn't. The Oath Keepers on the ground weren't all that violent, but the fact that they had all those weapons at the ready, that's part of the plot, the conspiracy, the plan, right? And that's what pushed the jury over the edge into convicting on seditious conspiracy. Interesting.

So let's not forget here, though, that there were only two out of the five defendants were convicted on sedition charges, right? Three of those defendants were found not guilty of sedition. And it may be that because Rhodes and his top lieutenant were leaders and had a kind of guiding planning role, that that was instrumental in the decision to convict. Because the three others were much more, they were followers. In the ranks of the Oath Keepers, they were not sort of major players. And that may be another reason to think that seditious conspiracy is going to be reserved for a pretty small number of those who participated in January 6th.

Yeah. In fact, there are only two more seditious conspiracy trials on the horizon now. There's another group of Oath Keepers who are going to go on trial facing seditious conspiracy charges next week. And what's interesting about them is that none of them are leaders. All of the four defendants in the second Oath Keepers trial are much more like the three defendants who were acquitted of sedition. They're kind of follower types. And how does this conviction, this first major case in which a jury found the leader of the Oath Keepers guilty of seditious conspiracy, how does that fit into our understanding of that and how we're going to be thinking about what really happened on January 6th? Well, look, it sets a template, right? sets a template, right? You know, prosecutors can now confidently stand up and say, hey,

a jury has ruled that there was an organized plot afoot on January 6th that was the culmination of a week's long effort to stop an American president from taking office. That doesn't mean that everybody at the Capitol that day was involved in that plot, but the jury has spoken and that plot was afoot. Right. And that starts to mean that the claim that we have heard a lot since January 6th, that what happened there was spontaneous

and kind of a demonstration, a stop the steal rally gone astray. And that's what Trump has long said, that that argument becomes less and less credible. Yes, the jury has returned a verdict that cuts directly against that claim. Well, Alan, thank you very much. We appreciate it. My pleasure as always, Michael. Thanks. We'll be right back.

Here's what else you need to know today. It's a Lehman moment within crypto and crypto is big enough that you've had substantial harm of investors and particularly people who aren't very well informed about the risks that they're undertaking. And that's a very bad thing. In an interview on Wednesday with my colleague, Andrew Ross Sorkin, Treasury Secretary Janet Yellen compared the recent collapse of FTX, the cryptocurrency exchange, to the implosion of the investment bank Lehman Brothers, which triggered the global banking crisis of 2008 and said that the entire crypto industry required far greater scrutiny and regulation. And I think everything we've lived through over the last couple of weeks, but earlier as well, says this is an industry that really needs to have adequate regulation, and it doesn't. In a separate interview, the founder and former CEO of FTX, Sam Bankman-Fried,

told Sorkin that the failure of FTX was, above all, his fault. I mean, look, I screwed up. Like, I was CEO. I was the CEO of FTX. That means I had a responsibility. That means that I was responsible, ultimately, for us doing the right things. And I mean, we didn't. Like, we messed up big. And good afternoon, everyone. It's an honor to stand before you today as the incoming House Democratic leader. Democrats in the House of Representatives unanimously elected a new leader on Wednesday, Congressman Hakeem Jeffries of New York, who will replace Speaker Nancy Pelosi

and become the first Black leader of either party in the chamber's history. Because Democrats lost control of the House in the midterms, Jeffries will become House Minority Leader and will need support from Republicans to accomplish almost anything over the next two years. We look forward to finding opportunities to partner with the other side of the aisle and work with them whenever possible. But we will also push back against extremism whenever necessary.

Today's episode was produced by Nina Feldman, Asta Chaturvedi, Eric Krupke, and Diana Nguyen. It was edited by John Ketchum, with help from Michael Benoit, contains original music by Marion Lozano and Alisha Ba'itub, and was engineered by Chris Wood. Our theme music is by Jim Brunberg and Ben Landsberg of Wunderling. That's it for The Daily. I'm Michael Labarro. See you tomorrow.