Oath Keepers' Jan. 6 trial: Why Stewart Rhodes is pushing an "I'm not racist!" defense

The Oath Keeper legal strategy may appear ludicrous until you consider their specific charge

By Amanda Marcotte

Senior Writer

Published November 7, 2022 5:45AM (EST)

An Oath Keeper from Idaho in Bozeman, Montana, shows off his membership. (William Campbell/Corbis via Getty Images)
An Oath Keeper from Idaho in Bozeman, Montana, shows off his membership. (William Campbell/Corbis via Getty Images)

In the wake of the break-in and attempted murder at the home of Speaker of the House Nancy Pelosi, the threat of right wing political violence is at the top of people's minds again going into the midterm elections. In his speech last week on the topic, President Joe Biden warned about "the dangerous rise in political violence and voter intimidation," which really kicked into high gear after Donald Trump incited the riot at the Capitol on January 6, 2021. New polling by ABC News and the Washington Post shows 88% of Americans worry about political violence. Unfortunately, polling also shows large numbers of Americans don't understand that the "antifa" violence of Fox News fantasies is largely imaginary, while right wing violence is very real. Still, it's against this backdrop of concern that Oath Keepers leader Stewart Rhodes and four of his militia members are facing trial for seditious conspiracy for their part in the January 6 insurrection. 

It might seem a little odd at first that, as the first day of the defense case played out Friday, their argument seems to be that Oath Keepers can't be guilty because they're just a bunch of harmless kooks. Also they claim they can't be racists who rioted to install a fascist leader in the White House because — yep, they went there — they have Black friends. 

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On Thursday, in a trial that's likely to last over a month, the prosecutors for the Justice Department rested their case that the five defendants had conspired to overthrow the government. The case relied heavily on text messages showing the group members and leadership talking, often with far less subtlety than they thought, about their plans to use violence to prevent the peaceful transition of presidential power from Trump to Biden. Throughout this first part of the trial, the defense made it clear that their main goal is to dissuade the jury from convicting on seditious conspiracy, by portraying the Oath Keepers as little more than a bunch of cosplayers who like to imagine they're providing "security," and not as people who went to D.C. with a preplanned intent to stop the election certification by force. By spinning insurrectionist activities of the day as a spontaneous reaction, they hope to avoid the most serious conspiracy charges. 

"I won't ask you to agree with Mr. Meggs' political beliefs," the defense lawyer for Kelly Meggs of the Florida Oath Keepers said on Friday, but painted the texts about overthrowing the government as mere "hyperbole, political rhetoric," and not "a plan, a scheme, something nefarious."

To get there, the defense is taking the big risk of putting Rhodes on the stand. Risky, because Rhodes is every inch the stereotype of an eyepatch-wearing right wing demagogue. But it's also understandable, because the very weirdness of Rhodes can help underscore the defense's implicit argument, which is, "Don't take these guys too seriously."

Throughout much of the morning, the defense line of questioning around Rhodes attempted to paint him as a political iconoclast, which is to say, more of a soapbox ranter than someone capable of substantive plotting against the U.S. government. Much was made of Rhodes' claims to be opposed to George W. Bush and his supposed opposition to the "prison-industrial complex." Rhodes testified about his work for former Republican Rep. Ron Paul of Texas, claiming it was due to the politician's supposed "anti-war" stance. He and his attorney took no pains to hide that Rhodes is an enthusiast of conspiracy theories, highlighting Rhodes's ridiculous beliefs that the 2020 election was "unconstitutional" and his implausible claim the Oath Keepers needed to be in D.C. on January 6 "to protect the White House" from the supposed anti-fascists that haunt right wing imaginations. 

While wearing his absurdity on his sleeve during testimony, Rhodes also went to great lengths to deny that he's violent or a racist, claiming, "If we found someone that was a racist, we'd kick 'em right out" of the Oath Keepers. Instead, he harped on being "a quarter" Mexican. He insisted he sent the Oath Keepers to Ferguson, Missouri in 2014 not to fight Black Lives Matter protesters but to "protect" Black-owned businesses from rioters. He claimed the Oath Keepers opposed the tear-gassing of peaceful protesters, though there is no evidence they did anything to protect the actual protesters from police violence.

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There is good reason to be skeptical of his claims. Rhodes may say he started Oath Keepers in response to the Bush administration, but in reality, he began the group in March 2009, as part of a larger nationwide tantrum of white conservatives to the election of Barack Obama as president. Claims that his group goes to Black Lives Matter protests to "protect" people are undercut by video footage showing protesters don't like them, in part because Oath Keepers make snooty, racist comments like "all lives matter" to them. During his live testimony to the January 6 committee over the summer, former Oath Keeper Jason Van Tatenhove spoke of how the group is full of "straight-up racists" who are so violent only luck kept the Capitol riot from being less deadly. 

In the even bigger picture, it may seem odd that the defense wants to talk about race and racism at all, when it could be argued that it's irrelevant to the question of whether the Oath Keepers did plot to overthrow an election on January 6. But the strategy does make a certain amount of sense. The idea is to convince the jury that the group was not a fascist organization meticulously outlining a seditious plot, but rather a rag-tag group of people playing dress-up who just got a little too enthusiastic about Trump that one time and fought some cops over it. It may seem like a ludicrous argument, but as I've written before, it's surprising how much white conservatives can get away with by arguing their violent speech is mere fantasy role-playing. Considering there's at least a conservative or two on the jury, including the girlfriend of an employee at the white nationalism-friendly Daily Caller, the whole "we're not violent racists, just middle-aged LARPers who happen to have real guns" argument may very well win the day. 

Still, it all remains to be seen. There is no doubt that Rhodes is an unsavory character, and despite all their constant reminders to speak to each other in code, seditious intentions were easily gleaned from the text messages the prosecution shared with the jury. Rhodes is expected to undergo cross-examination, where it's likely prosecution will produce evidence poking holes in his image of the Oath Keepers, replacing it with a more accurate picture of a right wing militia that puts its very white membership on the wrong side of struggles over racial equality in America. If Americans are really as opposed to political violence as the polls say they are, the Oath Keepers still face an uphill battle if they want to skate away from justice. 

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.

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