Five members of the right-wing militia group the “Oath Keepers” are on trial for seditious conspiracy.  From the first, the government acknowledged the difficulties it faced.  “It is rare that a conspiracy can be proven by direct evidence of an explicit agreement.”[1] 

            Instead, in the seditious conspiracy trial of Stewart Rhodes and four other leaders, the government has presented much evidence on the “mid-set and motives”[2] of Rhodes “in the post-election period.”  They have also demonstrated the close coordination between Rhodes and other Oath Keeper leaders.  Finally, they have shown the existence of two armed “quick reaction forces” at Arlington National Cemetery and a Virginia hotel. 

            However, a critic might argue that the government should have had direct evidence of a conspiracy.  The FBI had informants among the Oath Keepers.  In November 2020, an Oath Keeper contacted the FBI after listening to a talk by Stewart Rhodes that he found alarming.[3]  A low-level member who eventually participated in the attack on the Capitol, told FBI agents beforehand that the group had no plans to attack the Capitol or interfere with the election’s certification.  Most importantly, a third source was Greg McWhirter, vice president of the Oath Keepers.[4]  From early in 2020, McWhirter had been reporting to the FBI on the Oath Keepers.[5]   

            The government chose not to call any of its informants as witnesses.  It’s easy to understand why not when some of the witnesses they did call said that the invasion of the Capitol had been a “spontaneous” act by the Oath Keepers on the spot, rather than the implementation of a formal plan by Rhodes and the others.  One Oath Keepers who has struck a plea deal with the government, could offer no information on the planning or intent of the Oath Keeper leaders for 6 January.[6]  Rather, “when the crowd got over the barricade and they went into the building, an opportunity presented itself to do something.” 

            If the government didn’t put up its informants, Stewart Rhodes did take the stand in his own defense.  He resolutely denied the existence of any plot to attack the Capitol or interfere with certification of the election.  For his part, McWhirter was called by the defense, not the prosecution.  He hasn’t yet testified because he suffered a heart attack on the way to Washington.

If this dog won’t hunt, the prosecutor will say sententious things about “accepting the decision of the jury.”  Meanwhile, the accused will have been held up to—well deserved–public shaming and been loaded with legal bills.  Was that the point all along? 

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[1] Alan Feuer, “Key to Jan. 6 Trial: Did Oath Keepers Plan Their Role?” NYT, 11 November 2020.  This sounds a bit like arguing that the absence of evidence is itself proof of the conspiracy.  “That’s how a conspiracy works.” 

[2] Like other people on the far right, Rhodes is reported to believe that the Chinese government has a grip on Joe Biden.  Many of the allegations made in conversation bear a marked resemblance to the contents of the Steele Dossier concocted against Donald Trump. 

[3] Apparently, the report fell through the cracks because the FBI only contacted him after 6 January. 

[4] Alan Feuer and Adam Goldman, “Informant Likely to Testify for Defense in Oath Keepers Trial,” NYT, 9 November 2022; Alan Feuer, “Key to Jan. 6 Trial: Did Oath Keepers Plan Their Role?” NYT, 11 November 2020. 

[5] Among other things, McWhirter reported that after the right-wing activist Aaron Danielson was ambushed and killed on 29 August 2020, allegedly by “antifa” activist Michael Reinoehl, Rhodes had talked about attacking “antifa” members in the Portland, Oregon area.  Apparently the FBI could not obtain a warrant for more intrusive measures to investigate McWhirter’s claim. 

[6] ‘Sorry for what I did’: Oath Keeper who pleaded guilty for Jan. 6 breach breaks down on the stand – POLITICO  His plea agreement required him to testify that there had been a plot.  The best he could manage on the stand was that he believed, based on what happened, that there had been an “implicit plot” to which he was not privy.