In the past week or so, lawyers for Stewart Rhodes and four other members of the Oath Keepers militia have defended their clients against charges of sedition by hammering the same point to a jury: Many in the far-right group joined in the attack on the Capitol on Jan. 6, 2021, but nothing they did that day was part of a premeditated plan.
That distinction might be minor, but the defense’s strategy in drawing it was meant to undermine the foundation of the government’s indictment.
From the start of the trial, in Federal District Court in Washington, prosecutors have accused Mr. Rhodes and his subordinates of agreeing after the 2020 election to take part in a seditious plot to use force to disrupt the transfer of presidential power.
As the proceeding moves toward its conclusion, perhaps as early as next week, the outcome may boil down to a single question: Will the jury convict the defendants of conspiracy even though there may not be definitive proof that the role they played in the Capitol attack was the culmination of a predetermined plan?
Well before the trial began last month, the government had amassed a staggering trove of evidence about what Mr. Rhodes and his co-defendants — Kelly Meggs, Kenneth Harrelson, Jessica Watkins and Thomas Caldwell — had done in the weeks and months leading up to Jan. 6.
Prosecutors had obtained tens of thousands of internal Oath Keepers text messages and conducted scores of interviews with members of the group or its associates.
They even had an informant in the heart of Mr. Rhodes’s organization: Greg McWhirter, the Oath Keepers’ former vice president. Throughout much of 2020, Mr. McWhirter, then the No. 2 man in the group, was secretly reporting about Mr. Rhodes and others to the F.B.I.
Much of this evidence was put to use during the government’s case at trial to establish Mr. Rhodes’s mind-set and motives in the post-election period. Prosecutors portrayed him as a man beset by fears that Joseph R. Biden Jr. was a “puppet” of the Chinese Communist Party. They suggested that the Oath Keepers, under his direction, were prepared to stop Mr. Biden from entering the White House, as one witness put it, “by any means necessary”
The evidence also showed an extensive level of coordination between Mr. Rhodes and the other four defendants as they prepared to serve as bodyguards at pro-Trump rallies in Washington in November and December 2020.
Some of their preparations involved the creation of a so-called “quick reaction force” of armed Oath Keepers staged in a van at Arlington National Cemetery that was poised to rush to the aid of their compatriots if things got out of hand. A similar force was kept at the ready at a hotel in Virginia on Jan. 6.
But what prosecutors never had during their monthlong presentation was a smoking gun — any evidence that definitively showed that Mr. Rhodes and his subordinates had a plan in place on Jan. 6 to storm the Capitol and stop the certification of the election. Indeed, some of the government’s own witnesses acknowledged under cross-examination that the breach of the building had essentially unfolded on the spot.
One of those witnesses was Graydon Young, a former Oath Keeper from Florida, who told the jury that in the frantic weeks leading up to Jan. 6, he understood that Mr. Rhodes wanted to do something about stopping the election, but what that was became clear only when the group was at the Capitol.
Mr. Young described breaching the building as a “Bastille-type moment” that later made him feel like a “traitor.” But he also said that the decision to go in had been more or less spontaneous.
“We talked about doing something about the fraud in the election before we went there on the 6th,” he said. “And then when the crowd got over the barricade and they went into the building, an opportunity presented itself to do something.”
Mr. Rhodes was much more strident in his views about that day when he took the stand in his own defense, admitting that several members of his group had gone into the Capitol but denying that he had issued any orders for them to do so. He told the jury that, in fact, he had been outraged at those who went inside, criticizing them for being “stupid.’”
In his distinctive black eye patch — the result of a gun accident — Mr. Rhodes also said that he had “nothing to do with” the armed “quick reaction force” that was stationed in Virginia, blaming others for having set it up. At the same time, however, he argued that the force would have been used only if Mr. Trump had invoked the Insurrection Act, a move that he believed would have given the Oath Keepers standing as a militia to bring weapons into Washington.
Taking the stand is risky for any defendant, and Mr. Rhodes may have done himself more harm than good with the jury in some respects.
At one point, he appeared to embrace the QAnon conspiracy theory, admitting under cross-examination that he wanted Mr. Trump to declassify the nation’s secrets in an attempt to expose the “pedophiles” in government. At another, he bragged about the domineering sexual relationship he had with his lover and lawyer, Kellye SoRelle.
But despite such moments, Mr. Rhodes never wavered from his position that a plan to storm the Capitol did not exist. That contention was echoed as the defense went on this week by a series of other witnesses, including Michael Greene, the Oath Keepers “ground commander” on Jan. 6, who is facing charges in a separate criminal case.
The government cannot have been surprised by these arguments. On the first day of the trial, Jeffrey S. Nestler, a prosecutor on the case, told the jury during his opening statement that criminal conspiracies are rarely hatched in the open or set forth in neatly written documents for investigators to discover after the fact.
“Common sense tells you that when people agree to enter into a criminal conspiracy, much is left to unexpressed understanding,” prosecutors wrote in recent court papers, echoing what Mr. Nestler told the jury. “It is rare that a conspiracy can be proven by direct evidence of an explicit agreement.”
The defense, in their own court papers, disagreed. They argued that conspiracies needed to be based on concrete plans and can only occur when people join forces “as the result of a preconceived agreement.”
The government, at least in theory, has a final opportunity to introduce more evidence that the Oath Keepers had a plan to disrupt the democratic process on Jan. 6. Three members of the group pleaded guilty to seditious conspiracy before the trial began and as part of their cooperation deals, confessed there was a plot to forcibly oppose the lawful transfer of power.
None of those three witnesses were called during the prosecution’s case in chief, but they could be called during the last part of the trial in the government’s rebuttal.