Trump's legal troubles mount as Oath Keepers plan to throw him under the bus at sedition trial

The January 6 hearing may be postponed, but Trump is still flailing, and has even sidelined his top lawyer

By Amanda Marcotte

Senior Writer

Published September 28, 2022 12:30PM (EDT)

Stewart Rhodes, founder of Oath Keepers (Aaron C. Davis/The Washington Post via Getty Images)
Stewart Rhodes, founder of Oath Keepers (Aaron C. Davis/The Washington Post via Getty Images)

With Hurricane Ian bearing down on Florida, it's completely understandable why the House committee investigating the January 6 insurrection postponed Wednesday's scheduled hearing. No new date has been scheduled, though it will be coming soon and is likely to be another doozy of a hearing. As Heather "Digby" Parton, notes, the word is that the committee will focus heavily on the role of long-time Donald Trump confidante Roger Stone, and the role he played in planning and executing the Capitol riot. 

But even without the January 6 hearing to provoke Trump's ravings on social media, Trump has a lot of legal problems to sweat this week. That's because jury selection began for the trial of Oath Keepers head Stewart Rhodes and four other members of his far-right militia. The Oath Keepers, as with the Proud Boys, are both heavily linked to Stone and both were central to the Capitol insurrection.

Want more Amanda Marcotte on politics? Subscribe to her newsletter Standing Room Only.

The Department of Justice has a treasure trove of evidence against the Oath Keepers. Two of the members charged with seditious conspiracy have already struck deals, pleading guilty and cooperating with prosecutors. In addition, the government has a mother lode of text messages between group members that not only showcases their planning but also their links to Stone and other people in Trump's orbit. Unable to deny that they were up to their necks in seditious conspiring, the five Oath Keepers are going to trial with a novel defense: Blaming Trump for telling them to do it. 

"They intend to tell the jury that when armed teams of Oath Keepers made plans to rush into Washington from Virginia on Jan. 6, 2021, they believed they would be following legal orders from the president himself," the New York Times reports. Because they claim to have been acting on orders from Trump, the defendants plan to argue they believed the insurrection was legal. 

While it's questionable they actually thought secretly planning a deadly assault on the Capitol was legal, there's a mountain of public evidence already that the Oath Keepers, as well as the Proud Boys, had every reason to believe they were acting on Trump's orders. Trump did go on national television, during a 2020 debate with Joe Biden, and instruct the Proud Boys to "stand by." Newly released video footage shows Stone raving on the day before Election Day, "F**k the voting, let's get right to the violence." The Oath Keepers kept steady contact with Stone and knew full well that he was in regular contact with Trump, who commuted Stone's sentence for previous crimes committed in defense of Trump. Former White House aide Cassidy Hutchinson testified that on January 6 Trump showed every sign that he planned to join the Oath Keepers and other insurrectionists, and was only stopped by a Secret Service agent.

Already, the DOJ and Attorney General Merrick Garland are finding it harder than ever to avoid the topic of a Trump indictment.

So far, no evidence has been made public that Trump directly instructed the Oath Keepers or Proud Boys, or used a conduit like Stone to offer direct instructions. It would certainly bolster the Oath Keeper case if such communications existed. But, as Trump's former fixer Michael Cohen testified to Congress in 2019, Trump is very talented at making his desires known to his followers without giving direct orders which could be used against him in court. Like Cohen, the Oath Keepers may be another group of Trump sycophants who intuited what he wanted and acted on his implied command, without realizing it means they could go to prison while Trump skates away scot-free. 

Want more Amanda Marcotte on politics? Subscribe to her newsletter Standing Room Only.

Still, there's no universe in which it looks good for Trump to be accused in court of giving those instructions, either directly or through implication. Especially not if the January 6 committee, once they finally have a chance to reconvene, recommends the DOJ formally prosecute Trump himself for leading a seditious conspiracy. 

Already, the DOJ and Attorney General Merrick Garland are finding it harder than ever to avoid the topic of a Trump indictment. He refused for months to return classified documents he illegally took from the government until the FBI was forced to raid Mar-a-Lago to retrieve them. Then Trump and his legal team decided, as is Trump's habit, to hit back as hard as possible against the DOJ, making unsubtle threats of violence and filing lawsuits to impede the DOJ's work. 

At first, it seemed like it might work, with a Trump-appointed judge in Florida, Aileen Cannon, blocking the investigation and forcing the DOJ to agree to a "special master" to review the documents before letting the DOJ repossess them. But the Trump team celebrations didn't last long. The appeals court threw out Cannon's decision, with harsh words for her shoddily argued legal reasoning. On top of that, the "special master," Brooklyn judge Raymond Dearie, isn't actually helping Trump's case. He has shot down most of Trump's arguments that he has a right to hold onto these documents and has demanded evidence for Trump's false accusations that he's being framed. 


Part of the issue is that Trump is a nightmare client, but he also has a reputation for not paying his legal fees.

CNN reported Tuesday that Trump has already sidelined his top lawyer, former Florida solicitor general Chris Kise. Kise was hired with great fanfare just a few weeks ago, a seeming rebuttal to widespread reports that Trump has been scraping the bottom of the legal barrel for representation. Part of the issue is that Trump is a nightmare client, but also — and likely, more importantly — he has a reputation for not paying his legal fees. Kise fixed that problem by reportedly collecting $3 million upfront, which Trump likely paid without too much fuss because he's found a way to use his leadership PAC to pay his legal bills

Pushing Kise off the legal team handling the classified document scandal is a strong sign that Trump thinks things are not going well for him. And yet he seems fully committed to the strategy of filing baseless legal objections to slow down the process. As Charlie Savage of the New York Times reported, this can be inferred by the DOJ's very public responses to even more Trump team filings.

Clearly, he is trying the patience of Justice Department leadership. Trump's signature move — being a relentless headache — is meant to convince Garland and other federal prosecutors to fold. But angering them is a risky strategy; it might just make them more motivated to get their man. Doubly so as outside forces — namely the Oath Keepers and the January 6 committee — keep arguing that Trump was the main instigator of the January 6 insurrection. Trump still projects confidence, but his increasing reliance on his most delusional supporters suggests he, at least, is starting to worry that his lifetime supply of impunity may be hitting its limits.  


By Amanda Marcotte

Amanda Marcotte is a senior politics writer at Salon and the author of "Troll Nation: How The Right Became Trump-Worshipping Monsters Set On Rat-F*cking Liberals, America, and Truth Itself." Follow her on Twitter @AmandaMarcotte and sign up for her biweekly politics newsletter, Standing Room Only.

MORE FROM Amanda Marcotte

Related Topics ------------------------------------------

Analysis Fbi Raid Mar-a-lago January 6 Committee Merrick Garland Oath Keepers Proud Boys Roger Stone