The Oath Keepers are on trial this month, charged with a seditious conspiracy under 18 U.S. Code § 2384 from 1861, and conspiracy to obstruct an official proceeding under 18 U.S.C. § 1512(c)(2). The DoJ is also prosecuting them for causing the recess at 2:18 PM of the Joint Session of Congress by wandering in the East Rotunda Doors of the Capitol at 2:39 PM. The prosecutors have resisted for a year explaining how this is possible.
However, the Oath Keepers have raised as their primary defense that they petitioned the Commander in Chief Donald Trump to invoke the “Insurrection Act” of 1807 under 10 U.S. Code Chapter 13. Both statutes are old and dusty, that are rarely used.
Related: Trial of Oath Keepers Founders on Two Old, Dusty Laws -- Part ITrial of Oath Keepers Founders on Two Old, Dusty Laws -- Part II
The prosecution has no evidence and has made no factual allegations that the Oath Keepers engaged in any violence, damaged any property, forced their way into the building, or touched any police officer
Everyone expects the jury in politically Left-wing Washington, D.C. to convict all of the January 6 Defendants. All judges always believe (consistent with precedent) that they have the persuasive ability to inspire a biased jury to be “fair.” The courts believe that if they pick the 12 best (16 with alternates) out of a very biased jury pool, then that’s okay. Most people believe that the 16 least-biased jurors are still biased.
As a result, everything in the January 6 trials is actually focused on the many reversible errors in the case as grounds for appeals. So while the trial is about prosecutors inflaming the jury, the real story is the legal issues for the Court of Appeals and the U.S. Supreme Court. And that’s where the actual laws come in.
Initially, it is necessary to blow away the smoke of misinformation. The prosecutors have admitted that the Oath Keepers did not “lead” any attack upon the U.S. Capitol. In a public legal filing, prosecutors denied a demand for discovery information on the grounds that there is no allegation in court of what the House Select Committee has claimed. Jim Hoft,. “Government Admits Oath Keepers Did Not “LEAD” Attack on US Capitol on January 6,” The Gateway Pundit, August 24, 2022.
The prosecution has no evidence and has made no factual allegations that the Oath Keepers engaged in any violence, damaged any property, forced their way into the building, or touched any police officer. Only after exposés by mainly me with help from Brad Geyer, prosecutors begrudgingly admit that the East Rotunda Doors could only be opened from the inside and that the Oath Keepers did not open the doors.
The prosecution uses boilerplate conclusory allegations, like form letters, copied robotically from one January 6 case to the next. But they have no facts and don’t pretend to of any of these actions by any of the Oath Keepers. The only exception is that the grand jury claims that Kenneth Harrelson and Jason Dolan brushed past a U.S. Capitol Police officer at the top of the stairs when someone from the inside opened the East Rotunda Doors. However, the videos carefully curated by attorney Brad Geyer show that the crowd shoved Dolan and Harrelson from behind and into the police officer and through the door.
The trial isn’t going well for the prosecution
The trial isn’t going well for the prosecution. Witnesses called by the prosecutors have already proven the Oath Keepers innocent of seditious conspiracy and of a conspiracy to obstruct an official proceeding, like Oath Keeper Terry Cummings. We know that none of the Oath Keepers caused any damage, as admitted in an email from AUSA Kathryn Rakoczy. The Government prosecuted Hunter Ehmke (who pleaded guilty) for breaking a nearby window at 2:15 PM, but admits that the Oath Keepers reached the area only at 2:26 PM, reached the bottom of the East-side central stairs at 2:32 PM and reached the top of those stairs at 2:39 PM.
Although the prosecution tries to show acts in preparation for a (non-existent) plan to “attack” the Capitol, all of the evidence shows preparation to be ready in case the President called up the militia under the Insurrection Act. Trump never did use the centuries-old law. And the Oath Keepers never did anything to act as if he did.
The insurrection at issue of course was the anarchist war of persistent riots from 2014 through 2020 by ANTIFA and other anarchist and Left-wing mobs. In 2020, these rioters actually set up zones that they declared to be independent countries – pretty much one definition of an insurrection. The rioters attacked the White House, the center of our world-wide military decision-making. There has never been a greater threat to our country and democracy than the May - June 2020 assault on the President launched from Lafayette Park. That’s why Trump had to go outside and show the world – including our military enemies worldwide – that he was still functional as Commander in Chief. Imagine what that looked like to hostile foreign powers.
The Oath Keepers held near certainty that Trump would call them up because out of the subset of potential militia most of them have military or law enforcement credentials but they reject the Deep State. At its peak the Oath Keepers had 40,000 dues-paying members. But they are targets of convenience because they are conservatives who since 2009 will not “Kneel before Zod.”
The Oath Keepers reject the idea that they are a militia. They argue that all able bodied (originally men) are the potential militia and the President can call up any subset of the latent militia. The President can call up the National Guard or the population, like a posse in an old Western movie. But the Oath Keepers would only be a militia if and when called upon.
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DoJ has to misrepresent the conversations
So the prosecution is trying to put on a parade of horribles of over-the-top locker room talk in which these frustrated patriots tried to out-do each other in saying outrageous things. These comments are damning, but violently ripped out of context by the prosecutors. You may not like the wry sense of humor, as it makes me cringe. But the prosecutors cannot distinguish between trash talk jokes and serious plans. For example, one Oath Keeper posted that “I will be the one walking around with the budget AR.” But none of the Oath Keepers brought any guns into Washington, D.C., much less AR-15s. No one was walking around with any AR15. The guy was making fun of his own poverty, not literally intending to bring an AR-15 into the city. But to paraphrase “Men in Black 2,” “We in the DoJ do not have a sense of humor that we are aware of.”
Therefore, the trial is focused on all of the dumb things that the Oath Keepers said to each other over chats, text messages, and communication apps. Yet the DoJ has to misrepresent the conversations. Judge Amit Mehta is allowing the DoJ to violate Rule 106 of the Federal Rules of Evidence and the “Doctrine of Completeness” by introducing sometimes just partial sentences instead of the entire conversations.
So the result will come down entirely to whether the jury wants to look for the truth or merely for excuses to convict.
Jonathon Moseley is co-founder and Legal Counsel of Americans for the Trump Agenda, and Executive Director of the White House Defense Fund. Moseley is serving as Legal Counsel for Americans for the Trump Agenda, and is also a Virginia business and criminal defense attorney. Moseley and a co-host with the “Conservative Commandos” radio show, and an active member of the Northern Virginia Tea Party. He studied Physics at Hampshire College, Finance at the University of Florida and law at George Mason University in Virginia. Moseley promoted Reagan’s policies at High Frontier and the Center for Peace in Freedom. He worked at the U.S. Department of Education, including at the Center for Choice in Education.
