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.
Attorneys for Rhodes say he hoped Trump would invoke the Insurrection Act in response to widespread rioting, looting, and vandalism that occurred throughout 2020. The weapons the group brought to Virginia before Jan. 6 were only for use if Trump called up a militia to protect the White House from attacks by Antifa, they said.
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.”