A federal law that dates to 1792 could play a major role in whether five Oath Keepers defendants on trial for seditious conspiracy in Washington are convicted of an alleged plot to attack the Capitol on Jan. 6 or acquitted because one can’t conspire to do something legal.
The Insurrection Act has become widely discussed in the run-up to the trial of Oath Keepers founder Elmer Stewart Rhodes III, Kelly Meggs, Kenneth Harrelson, Jessica Watkins, and Thomas Caldwell.
Prosecutors contend the Insurrection Act is nothing but a legal cover for the Oath Keepers to use force to interrupt the counting of Electoral College votes by a Joint Session of Congress on Jan. 6, 2021, and to keep President Donald Trump in office.
Plenary Authority
Trump never used the Insurrection Act, but “the Act does confer broad authority to presidents to use the militia to quell ‘unlawful obstructions, combinations, or assemblages’ or ‘any insurrection, domestic violence ... or conspiracy,’ ” Rhodes attorney James Lee Bright wrote in a memorandum filed with the court.One of the keys to the trial will be arguments on whether the cache of firearms brought by Rhodes and others and stored at a Virginia hotel were there for attacking the government as prosecutors contend, or for use if Trump invoked the Insurrection Act to protect the White House or other facilities.
“The Insurrection Act has been there from the beginning, but it really got strengthened up post-Civil War,” Rhodes told the FBI. “And so it gives the president the plenary authority to—for him to determine when there’s an insurrection in effect. Like last year when Antifa and BLM were burning down half of America, he could have used the Insurrection Act.”
“This is your moment of destiny. Will you take your place in history as the savior of our Republic, right up there with President Washington and Lincoln?” Rhodes asked.
“Or will you fail to act, while you still can, and leave office on Jan. 20, 2021, leaving we the people to fight a desperate revolution/civil war against an illegitimate usurper and his Chicom puppet regime?”
In an interview with two FBI agents on May 3, 2021, Rhodes said his big concern leading up to Jan. 6 was Antifa making good on threats to sack the White House.
“And our big concern was Antifa,” he said. “My concern was Antifa was gonna go kinetic. You know, what if Antifa goes kinetic?”
The Insurrection Act traces its earliest roots to 1792 with the Calling Forth Act, which was repealed and replaced by the Militia Act of 1795. The Insurrection Act of 1807 was enacted by the Ninth Congress. The Suppression of Rebellion Act of 1861 and the Ku Klux Klan (Civil Rights) Act of 1871 are the other two pieces of what collectively is known as the Insurrection Act.
“The Insurrection Act allows the president to deploy the military inside the United States and use it against Americans, making it one of the executive branch’s most potent emergency powers,” the Brennan Center’s Joseph Nunn and Elizabeth Goitein wrote in the organization’s guide to the Insurrection Act.
In 1794, President George Washington used the act and led a militia into Pennsylvania to put down a revolt started over a liquor tax. The Insurrection Act was most recently used by President George H.W. Bush to quell Los Angeles violence after the beating of a black man, Rodney King, by white police officers in 1992.
“We weren’t saying that Trump ought to [indiscernible] the Insurrection Act and go and round up all the leftists and put them in concentration camps,” Rhodes told the FBI. “That’s not what we were saying. But, you know, suppress the insurrection.
Changes Needed?
The Brennan Center on Sept. 20 wrote to the House Jan. 6 Select Committee, urging Congress to reform the Insurrection Act to prevent the very thing Rhodes advocated in his letter to Trump.“Several Trump allies called on Trump to invoke the Act and deploy federal troops for the purpose of impeding the [presidential] transition,” Goitein wrote in a letter to the Select Committee.
“Moreover, members of the extremist right-wing group Oath Keepers, spurred on by their leader, Stewart Rhodes, believed that Trump would invoke the act and that doing so would enable them to join U.S. armed forces in preventing Biden from assuming office.”
Although the Brennan Center bills itself as nonpartisan, the conservative National Center for Public Policy Research contends it is one of “the most dishonest and aggressive voter fraud deniers” that received more than $7 million from George Soros’s Open Society Foundations from 2000 to 2010.
Citing a Supreme Court decision issued in 1827, Bright wrote that “the president’s decision to call forth the militia is extremely broad and entirely unreviewable.”
An 1895 Supreme Court decision stated, “If the emergency arises, the army of the nation, and all its militia, are at the service of the nation, to compel obedience to its laws,” Bright wrote.
Bright said the Oath Keepers case involves the intersection of “two vague, broad, centuries-old laws that ironically share similar characteristics. Seditious conspiracy proscribes conspiring to oppose the execution of federal laws, and the Insurrection Act can be used to quell such a conspiracy.
“... But, here, in its theory of prosecution, the government potentially argues, via several filings and various motions, that asking a president to invoke the Insurrection Act to suppress a seditious conspiracy is itself a seditious conspiracy.”
Citing a transcript of a November 2020 GoTo Meeting session, assistant U.S. attorney Kathryn Rakoczy quoted Rhodes saying the formal invocation of the Insurrection Act “gives you legal cover.”
During an encrypted chat on the application “Signal,” Rakoczy wrote, Rhodes wrote “that President Trump ‘needs to know that if he fails to act, then we will. He needs to understand that we will have no choice.’ ”
The prosecutor urged U.S. District Judge Amit Mehta to limit what information the jury can hear about the Insurrection Act.
Rhodes’s information on the act risks “injecting into the trial a complicated and confusing theoretical debate about whether the Insurrection Act would permit the president of the United States to authorize groups like the Oath Keepers to use force through the Insurrection Act to enable the president to stay in power and contest an election result that the president claimed was fraudulent, but that other branches of government had found lawful,” Rakoczy wrote.
