Jury hears closing arguments in seditious conspiracy trial over Capitol riot
The start of deliberations marks the 9th week in the trial of Stewart Rhodes, a veteran who founded the Oath Keepers, & four of his associates
Lawyers for five people charged with plotting to overthrow the U.S. government after the 2020 presidential election delivered closing arguments on Monday, giving jurors little time before the Thanksgiving holiday to deliberate.
Throughout the course of the eight weeks of trial, prosecutors have presented troves of records, photos and videos to support the theory that the defendants planned, recruited and stocked up on weapons as part of a larger plot to “oppose by force the lawful transfer of presidential power.”
Stewart Rhodes, who founded the far-right Oath Keepers militia group, and four of his associates are accused of using force to drive members of Congress out of the Capitol on Jan. 6, 2021, to occupy the building for a period of time, and to stop a ceremony that Congress was conducting at the time to certify the results of the presidential election. Five people died in the Capitol attack, and the ceremony had to be called off and rescheduled.
But to prove the charge of seditious conspiracy, prosecutors must show that the five defendants had an actual agreement to "overthrow, put down, or to destroy by force" the U.S. government.
Bradford Geyer, an attorney for defendant Kenneth Harrleson, did not call any witnesses nor did he present a case during the trial. He insisted Monday, however, that the Capitol building had already been breached by the time Harrelson got there, meaning he could not have been one of the leaders of the insurrection.
“Does anyone realize that this would require a time machine for such an assertion to be true?” Geyer asked the jury.
Police began evacuating members of Congress from the Capitol at around 2:13 p.m., shortly after the first breach occurred on the west side of the building, he said. At that point, he continued, Harrelson was still working security, one of the six or seven security details the Oath Keepers had stationed around Washington that day to safeguard people who would be speaking at a rally organized by the outgoing President Donald Trump.
Geyer said it was not until around 2:39 p.m. that Harrelson made his way into the east side of Capitol building as part of a military-style stack with Jessica Watkins, 40, and Kelly Meggs, 53, both of who are indicted alongside Harrelson.
Once he entered through the Capitol door, the lawyer continued, Harrelson spent only about 17 minutes inside.
“They want you to turn this man’s life upside down for 17 minutes,” Geyer told jurors, insisting that Harrelson did not personally force out any members of Congress. “He needs your help.”
“And when it comes to this nonsense about seditious conspiracy,” Geyer added, the government did not even attempt to tie Harrelson and his other four co-defendants with those he insists were actually leading the assault on the Capitol: the core group of provocateurs.
Those people, the lawyer said, arrived at the Capitol grounds in the early hours of Jan. 6. They had bullhorns and were pamphleteering, he said, and they are the ones who first breached the Capitol and were clearly trying to stop the government and the electoral college from carrying out their ceremony.
The government sold the defendants as being the leaders of the insurrection, but Geyer said “it was those west-side perpetrators” — people who were “cracking skulls” — who conspired to breach the Capitol and were the first ones to do so.
The three defendants were not the first ones in nor the last ones out, Geyer said, claiming that “they weren’t the leaders of anything” other than perhaps the leaders of scary words. He told jurors the government “has a time problem” because the time that things transpired does not comport with prosecutors’ theory that the Oath Keepers were the leaders of last year’s insurrection.
“Please send Kenny home,” he urged jurors at the end of his nearly hour and a half summation.
Jurors then heard about an hour and a half of closing arguments from defense attorney Jonathan Crisp, who represents defendant Watkins.
Crisp told jurors that the government presented no real evidence that shows she went into the Capitol building as part of a conspiracy to do anything other than illegally enter the building.
He recalled Watkins’ testimony during the trial that before she entered the Capitol, she heard people in the crowd saying Vice President Mike Pence had betrayed them, which she believed meant Congress had already certified the election.
Given that Congress recessed at 2:21 p.m., Crisp asked, “how do you interfere with the [certification] process?”
Prosecutors have pointed out during the trial, however, that Congress recessed at that time to debate objections to the electoral college — not because the Capitol building had been breached.
Crisp quoted Watkins as having testified that the doors to the building already appeared open when they entered and that she was “swept up” by the crowd.
Once inside, she allegedly walked around, stopped someone from damaging items and assisted a rioter who had been sprayed with a chemical irritant. And on the witness stand, Watkins admitted she joined a mob that pushed against a line of police officers guarding a hallway to the Senate Chamber.
The only reason she can be heard in video evidence saying “push, push, push” is because she was getting crushed by the crowd, he said. It was not, as the government contends, part of an effort to push past the police line further into the Capitol to drive Congress members out of the building.
“Watkins has more credibility than anyone on the government’s side,” her attorney said.
He also noted that, unlike her four co-defendants, Watkins is not charged with destroying evidence. She turned herself into authorities within hours of learning she had a warrant out for her arrest related to Jan. 6 and she did not try to hide any potentially incriminating evidence, he said.
Crisp asked jurors to consider the shame that she feels now and the way that she condemned the actions of Jan. 6 rioters, which he said is “evident and palpable.”
“I’d ask that you acquit her on all charges,” except for the count of obstructing police officers, to which she already admitted, Crisp added.
In defense summations Thomas Caldwell, 68, attorney David Fischer repeated their argument that Caldwell cannot be considered a member of the Oath Keepers organization because he did not pay dues.
As one of the three defendants in this trial to get on the witness stand, Caldwell testified as much last week. Prosecutors say his dues notwithstanding, Caldwell led a so-called quick reaction force whom the Oath Keepers kept on stand-by with weapons at a hotel in Virginia, awaiting word from Rhodes to join the fight.
The defense denies this, with Fischer claiming that the absence of any electronic communications between Caldwell and Meggs means they were communicating about the quick reaction force through an intermediary: a man named Paul Stamey.
Fischer said this suggests that Stamey was actually the person who was in charge of the quick reaction force because it was this individual, not his client, who reached out about the possibility of procuring a boat that would ferry the Oath Keepers battalion across the Potomac River into Washington.
U.S. Attorney Jeffrey Nestler reframed this argument during the government’s rebuttal, telling jurors Fischer did a “fantastic job” showing how Caldwell and Meggs indeed communicated about the quick reaction force through an intermediary.
That is how they both knew about the theory that the arsenal of weapons could be ferried across the Potomac and how many people Caldwell would have as part of the force on standby at the hotel, he said.
Nestler also scoffed at the claim by Watkins that she thought Congress already certified the election by the time she breached the building.
“Why would she do that if she already thought the certification proceeding was already over?” Nestler asked the jury.
Even if you do believe Watkins testimony, he told jurors, her actions on Jan. 6, and those of her four co-defendants, still prevented Congress for a time from carrying out the ceremonial certification.
Watkins’ attorney repeatedly in their closing argument likened Congress to a “dead body” by the time she entered the building. Nestler said Congress was not dead, rather, it was “knocked unconscious by what these defendants did that day.”
In addition to seditious conspiracy, all five defendants are also charged with attempting to obstruct an official proceeding, conspiring to obstruct, and aiding and abetting to obstruct. Nestler emphasized that the proceeding need not be underway when the crime is committed for these charges to stick.
What is important, he said, is evidence shows the defendants were trying to communicate with each other on Jan. 6. The lawyer called their messages and communications in the preceding months proof that they agreed, in advance, to stop the lawful transfer of power and to overthrow the U.S. government by force. So when the opportunity presented itself that on Jan. 6. they took it.
“The crime is the agreement,” he told the jury.
Nestler said the five defendants saw themselves as above the law, and that they should be held accountable for agreeing to commit sedition against the U.S.
“We ask you to uphold the Constitution that they tried to subvert,” he said. “They claimed to wrap themselves in the Constitution; they trampled it instead. They claimed to be saving the Republic; they fractured it instead.”
“Return the verdict that is consistent with the evidence: that they are all guilty,” Nestler said, concluding his nearly two-hour closing argument.
U.S. District Judge Amit Mehta, an Obama appointee, then discussed jury instructions with jurors and told them to return Tuesday morning to begin deliberating.
The five defendants are part of a group of more than 880 people whom the Justice Department has charged in connection with the Capitol riot. As of Nov. 6, about 337 people have pleaded guilty to misdemeanors, about 110 have pleaded guilty to felonies. Approximately 173 people have been sentenced to prison time.