As the second week of the seditious conspiracy prosecution of five members of the Oath Keepers organization begins in federal district court in Washington, there are three main takeaways from the first week from the perspective of someone who prosecuted conspiracy cases in that very same courthouse: The evidence of guilt is remarkably strong, the defenses offered are just as weak, and already witness testimony offers some reason for hope beyond this case.
Generally speaking, contested criminal cases — those that proceed to trial, as opposed to those resolved with guilty pleas — often involve evidence that is circumstantial rather than direct. To highlight the difference: If the ground is dry when you go to sleep but wet when you wake up, that is circumstantial evidence that it rained while you slept. But there may be other explanations, like a sprinkler system kicked on during the night. If you were awake and watched rain fall from the sky, that constitutes direct evidence. In most contested criminal cases I handled over the years, the proof was largely circumstantial, and I had to urge the jury to draw reasonable inferences from the evidence to prove the defendants’ actions and intent.
Rarely in my 30 years as a prosecutor have I seen a case with as much direct evidence of guilt as this trial.
Rarely in my 30 years as a prosecutor have I seen a case with as much direct evidence of guilt as this trial. Prosecutors have introduced videos of some of the defendants dressed in battle gear, using a military-style “stack formation” and approaching the U.S. Capitol on Jan. 6, 2021. They are then seen entering — or breaching — the Capitol. Some are heard on audio recordings bragging that they “took the Capitol.” Prosecutors have introduced written communications between and among the defendants discussing their plans for Jan. 6, which involved amassing a veritable arsenal of weapons in a motel in Virginia ready to be used at the Capitol. The lead defendant and head of the Oath Keepers, Elmer Stewart Rhodes, wrote open letters urging Donald Trump to invoke the Insurrection Act to deny Joe Biden his election win. Rhodes added that if Trump failed to do so, the Oath Keepers would arm themselves and take matters into their own hands. And mind you, all of this evidence has been presented to the jury before a single “cooperating witness” — a member of the Oath Keepers who was part of the conspiracy but chose to plead guilty and testify against the defendants — has even hit the witness stand. So, yes, the evidence of guilt is quite strong.
In contrast, the defenses offered by the five defendants’ attorneys have been underwhelming. Importantly, defendants never have the burden of proof at criminal trials. Indeed, only three of the five defense attorneys chose to give opening statements, with the two others deferring until after the prosecutors present their evidence and rest their case.
But the three defense opening statements and the defense attorneys’ cross-examination thus far suggest a steep climb toward an acquittal. For example, in the prosecution’s opening statement, Assistant U.S. Attorney Jeffrey Nestler told the jurors that they would hear evidence that Rhodes (incorrectly) claimed that if Trump invoked the Insurrection Act, it would give the Oath Keepers the lawful authority to take up arms and deploy to the Capitol. Nestler told the jury that the evidence would show Rhodes was urging the Oath Keepers to keep talking about the Insurrection Act merely as “legal cover” — or plausible deniability — for their determination to violently prevent the certification of Biden’s election win. Indeed, after Nestler alerted the jurors to this fact, the opening statement from Rhodes’ attorney fell flat when he suggested that the Insurrection Act angle was a legitimate defense to the indicted charges.
The two other defendants fared little better in opening statements. The attorney for Jessica Watkins admitted that the video evidence against her was damning, including conceding that Watkins “stormed the Capitol” and was caught on video saying, “We took the f’ing Capitol.” But he tried to suggest she might have had mixed motives on Jan. 6, pointing to Watkins’ taking “medical supplies” to help folks who may have been injured that day. That argument hardly negates her criminal conduct on Jan. 6.
Three veterans ultimately put patriotism and respect for American democracy above whatever drove them to join an organization like the Oath Keepers.
The attorney representing Thomas Caldwell opened by trying to highlight some evidence-gathering mistakes made by the FBI, none of which tended to exculpate Caldwell. But when proof of guilt is strong, it is entirely usual for defense attorneys to attack the investigators. Caldwell’s attorney even suggested that Caldwell’s written communications to other Oath Keepers about his “pre-strike rece (reconnaissance) missions” were really about determining where the port-a-potties were near the Capitol in case the need arose on Jan. 6. No, you can’t make this stuff up.
Third, three former Oath Keepers testified and actually offered some light amid the darkness. These three witnesses — John Zimmerman, Abdullah Rasheed and Michael Adams — are all military veterans. All three were members of the Oath Keepers for just a few months in the summer and fall of 2020. All three quit before the attack on the Capitol, so none of them had committed any crimes. All three testified that what they saw and heard from Rhodes and other Oath Keepers so disturbed them that they left the organization and eventually shared what they knew with law enforcement.
For example, Zimmerman had attended the so-called Million MAGA March in mid-November 2020, after Trump had lost the election. According to Zimmerman, Rhodes suggested that they attend the march dressed as elderly, vulnerable people, carrying canes and the like, to “bait” counterprotesters like “antifa and BLM” to attack them. Rhodes said that would give the Oath Keepers the opportunity to give the counterprotesters a “good beat down.” This angered and disgusted Zimmerman (who became visibly upset during his testimony). Zimmerman said he got into a heated argument with Rhodes and quit the organization after just three months as a member. Rasheed testified that he joined the Oath Keepers but participated primarily by attending online conference calls and meetings. During one such meeting, he was so alarmed by what he heard from Rhodes and other members that he made an audio recording of it. Rasheed told the jury that the group was making it sound like the Oath Keepers “were going to war against the United States.” He alerted law enforcement authorities and ultimately provided them with the audio recording, which prosecutors moved into evidence. The third military veteran to testify, Adams, like the two others, testified that he left the organization before January 2021 because of the Oath Keepers’ undemocratic and violent rhetoric, including Rhodes’ threat to have the Oath Keepers take up arms if Trump failed to stop Biden from becoming president. The trial resumes Tuesday, with cooperating Oath Keepers who “flipped” expected to testify in the coming days. Yet the testimony of Zimmerman, Rasheed and Adams already has meaning beyond the trial. Since the attack on the Capitol, we’ve come to learn that many of those who participated were veterans or active military members, former police, first responders and the like. That revelation can shake one’s understanding of the nature of patriotism and love of country. But these three veterans ultimately put patriotism and respect for American democracy above whatever drove them to join an organization like the Oath Keepers. Their words offer reason for optimism amid these challenging and dark times.
Glenn Kirschner
Glenn Kirschner, a former assistant U.S. attorney for Washington, D.C., is an NBC News and MSNBC legal analyst. 
