- Five Oath Keepers are facing trial for seditious conspiracy starting on Monday.
- Founder Stewart Rhodes will argue he believed Trump would invoke the Insurrection Act on January 6.
Oath Keepers founder Elmer Stewart Rhodes' lawyers plan to argue that he shouldn't be convicted over charges relating to the Capitol riot as he was waiting for orders from then-President Donald Trump, which never came, the Associated Press reports.
Rhodes, who has been charged with seditious conspiracy, plans to take the stand to argue that he believed Trump was going to invoke the Insurrection Act and call up a militia to support him to stop the certification of Biden's victory, his lawyers said, per AP.
Rhodes is one of five members of the far-right group that will stand trial over seditious conspiracy. Opening statements for the trial are due to begin on Monday.
The Oath Keepers face the most serious charges in a prosecution stemming from the attack on the Capitol on January 6, 2021, and Rhodes' defense strategy is unusual.
"This is an incredibly complicated defense of theory, and I don't think that it's ever played out in this fashion in American jurisprudence," James Lee Bright, one of Rhodes' attorneys, told AP.
The Oath Keepers leader faces up to 20 years in a prison cell if found guilty
The Insurrection Act is a law empowering the president to employ the military to suppress civil disorder.
The seditious conspiracy charge alleges not just a violation of the law but an attack on American democracy itself, legal experts said.
For the Justice Department, the trial comes with particularly high stakes. While its 20-year maximum prison sentence is equal to or even lesser than many other federal crimes, the seditious conspiracy charge carries a legal and symbolic significance — alleging not just a violation of the law but an attack on American democracy itself, legal experts said, wrote Insider's C. Ryan Barber.
Rhodes' lawyers will have to prove that his actions were not seditious as he was acting in anticipation of what he believed would become lawful.
"What the government contends was a conspiracy to oppose United States laws was actually lobbying and preparation for the president to utilize a United States law to take lawful action," Rhodes' lawyers, Bright and Phillip Linder, said in a court filing, according to The Guardian.
Bright said that Rhodes, a Yale Law School graduate, understands the risks of testifying but wants to "speak his piece," according to AP.
Prosecutors accuse the Oath Keepers of involvement in a scheme to stop the certification of Joe Biden's victory.
Members of the group amassed weapons and prepared so-called "quick reaction force" teams at a hotel near Washington, DC, prosecutors said.
Rhodes did not break into the Capitol himself on January 6 but entered restricted grounds outside the building, prosecutors have said.
The trial is expected to last between four to six weeks, The New York Times reported.