The Justice Department is trying to block the Oath Keepers they’ve charged with seditious conspiracy from shifting blame to Donald Trump when they are tried in federal court later this year, according to a court filing.
The DOJ’s requests come as both sides in the case are aiming to shape the limitations of the jury trial. Several new pre-trial court filings on Friday also amount to a preview of some of what the DOJ is planning to show at the trial. That includes threatening notes and messages – including one labeled a “death list” – about government officials, defense lawyers say.
The prosecutors’ planned approach to the trial is to keep a jury focused on the individual responsibilities of the defendants and not to allow them to say they were following Trump’s orders, according to the filing.
“Any ‘public-authority’ defense put forth by the defendants would fail for two reasons: no government agent possessed actual authority to order the defendants’ criminal actions, and, in any event, it would have been objectively unreasonable to rely on any such order,” Justice Department trial lawyers wrote about the case on Friday. “President Trump did not have the authority to permit or authorize a conspiracy to forcibly oppose the authority of the government or the execution of the laws of the United States, nor could he have lawfully sanctioned the attack on the United States Capitol on January 6 or any of the other criminal conduct allegedly perpetrated by defendants.”
Prosecutors also want to prevent defendants from trying to argue that law enforcement at the Capitol condoned the rioters’ actions because they didn’t stop the breach of the building, their court filings Friday say.
The Justice Department has used the same approach with other January 6 defendants headed to trial in recent months, as a way to cap the excuses defense teams could try with juries. A judge will ultimately decide what’s allowed.
The Oath Keepers are accused of plotting to block the transfer of power in 2020 by training in advance, then stockpiling weapons around the borders of Washington, DC, for January 6 and advancing together on the Capitol.
The defendants, for their part, are trying to keep details out of the trial as well. One defendant, Thomas Caldwell, has asked the judge not to allow a jury to learn about him trying to buy or build guns, about his co-defendant Jessica Watkins having alleged bomb-making instructions, and about a document labeled as a “death list” found at his home in the days after the January 6 attack.
The hand-written note included the names of Georgia election workers. Prosecutors would like to use it at the trial as evidence of his intent, according to Friday court filings, but Caldwell’s attorneys say it was merely a “doodle pad” and not a list.
“The Government’s trial strategy appears to center around putting a nefarious spin on every private communication that Caldwell and his co-defendants ever made, and then holding up a bunch of pictures of guns to the jury,” Caldwell’s attorneys wrote in the court filing. They cited a text Caldwell wrote to a friend saying, “Tell me who to shoot first and I’m all in!” – a political joke, the lawyers argue – before Caldwell mentioned health agency official Anthony Fauci, then-UK Prime Minister Boris Johnson and others, writing, “There are just not enough bullets to properly thin out the herd!”
Watkins’ lawyers argue the bomb-making instructions aren’t relevant to the case.
The Oath Keepers’ seditious conspiracy case is set to go to trial initially in Washington, DC, in September. There are nine defendants in total fighting their charges, including Rhodes.
Twelve January 6 defendants have been convicted at trials so far as part of the sprawling probe, and more than 300 out of 800 charged have pleaded guilty, including two who have admitted to seditious conspiracy.
Only one misdemeanor defendant charged among the hundreds of January 6 cases has been acquitted by a judge.