Prosecutors Could Switch Timeline of When the Oath Keepers’ Alleged Seditious Conspiracy Began

View of the U.S. Capitol in Washington on Aug. 1, 2022. Stefani Reynolds/AFP via Getty Images

WASHINGTON—Judge Amit Mehta, defense counsel, and prosecution attorneys talked on Nov. 10 at the federal courthouse about how to instruct the jurors before deciding the Oath Keepers’ fate.

As the Oath Keepers trial reached the end of the sixth week, defense lawyers told the court of their concern about a possible change in the prosecution’s position on the seditious conspiracy charge. Per the Department of Justice (DOJ) indictment, the Oath Keepers and affiliates’ plot against the U.S. government started shortly after the presidential election in November 2020.

However, the DOJ may shift its stand and argue that the conspiracy may have been conceived on the Capitol steps on Jan. 6, 2021, and not necessarily months before the event.

The government recently filed a motion (pdf) that reads, “To prove a conspiratorial agreement, the government need only show that the conspirators agreed on ”the essential nature of the plan,“ not that they ”agreed on the details of their criminal scheme.”

Furthermore, “as the Supreme Court explained in Blumenthal v. United States, 332 U.S. 539 (1947), the law rightly gives room for allowing the conviction of those discovered upon showing sufficiently the essential nature of the plan and their connections with it, without requiring evidence of knowledge of all its details or of the participation of others.”

Over the past few weeks, DOJ attorneys displayed exhibits that show conversations between the Oath Keepers and other individuals about topics including the 2020 presidential election, Oathkeepers founder Elmer Stewart Rhodes III’s open letters to President Donald Trump to invoke the Insurrection Act, chances of a civil war, and discussions before and after Jan. 6, 2021.

The defense told Mehta that it’s nearly impossible that the alleged conspiracy to disrupt the presidential transition could have been hatched in a matter of minutes on the Capitol steps on January 6. But the government said that would be a fair argument to mention in the jury instructions.

Multiple witnesses denied hearing Oath Keepers and affiliates discussing a plan to attack the Capitol on January 6, preventing President-elect Joe Biden from taking office, or interfering with the certification of Electoral Votes.

One of the prosecution witnesses, 57-year-old Graydon Young from Florida, broke down in tears on Oct. 31 at the federal courthouse while recounting his actions on January 6.

He said there weren’t any explicit directions to enter the Capitol. However, he told the court it was “common sense” that after all the communication he read and heard from the Oath Keepers before that day that the organization would interfere with the certification of Electoral Votes. According to Young, the Oath Keepers’ January 6 mission to overthrow the U.S. government was implicit.

“I thought we were going there to potentially do something about the election,” Young said.

Jeffrey Nestler, a prosecutor, questioned him about who he considered the enemy on Jan. 6, 2021, in Washington.

“The corrupt elements in the government,” Young responded.

“What would that make you?” Nestler asked.

“Some sort of traitor against my own government,” Young replied.

Young pleaded guilty to conspiracy and obstruction charges.

Rhodes, along with co-defendants Kelly Meggs, Kenneth Harrelson, Jessica Watkins, and Thomas Caldwell, have been charged with seditious conspiracy, conspiracy to obstruct an official proceeding, aiding and abetting, conspiracy to prevent an officer from carrying out any duties, destruction of government property, civil disorder, and tampering with documents.

The court and the counsel for both sides have not yet come to a joint agreement on how to instruct the jury.