WASHINGTON — The Justice Department and FBI are gathering evidence to try to build a large conspiracy indictment against members of the Oath Keepers for their roles in the Jan. 6 riot at the U.S. Capitol, according to people familiar with the matter, but the group’s sometimes fractious and fantasy-laden internal workings may complicate efforts to bring such a case.
In the wake of the short-lived insurrection, the Oath Keepers is the most high-profile, self-styled militia group in the country. While members use the jargon and trappings of a paramilitary organization, in daily practice they are often more akin to a collection of local chapters with a similar, conspiracy theory-fueled ideology about what they view as the inevitable collapse of the U.S. government as it becomes more tyrannical.
“This was not a well-trained army or a disciplined military unit, this was a loose structure,” said Karl Schmae, who dealt with Oath Keepers when he was an FBI negotiator responding to the 2016 occupation of the Malheur National Wildlife Refuge in Eastern Oregon.
The Oath Keepers group is a major target of the sprawling FBI investigation into the riot at the U.S. Capitol, along with another militant group, the Proud Boys, according to the people familiar with the matter who spoke on the condition of anonymity to discuss an ongoing investigation. How aggressively the Justice Department pursues such extremists will be a major test not only of the Biden administration’s pledge to combat domestic terrorism, but the law and the courts.
Twelve alleged Oath Keepers members or associates have already been arrested on charges related to Jan. 6. In court documents, the group’s founder Stewart Rhodes is usually referred to not by name but as “Person One.” The people familiar with the case said agents are working to see if a conspiracy case can be made against Rhodes and other senior members of the group.
Rhodes, who once worked as a congressional staffer for former libertarian congressman Ron Paul, was in Washington on Jan. 6 but insists he did not tell his members to attack Congress, and did not want them to.
The Oath Keepers members who allegedly went into the U.S. Capitol “went totally off mission,” Rhodes said last week in an interview. “There was a bunch of chaos. And I wanted to make sure my guys didn’t get into trouble ... some of them had gone stupid and jumped inside the Capitol.”
Asked if he expected to be charged with a crime, Rhodes said: “I don’t know” but prosecutors “are trying to manufacture a nonexistent conspiracy. I didn’t say, ‘Don’t enter the Capitol.’ I never figured they would do that.”
Peter Skinner, a former federal prosecutor, said the government “tends to view conspiracies very broadly. You need an agreement to commit a crime, but you don’t need the actual commission of the underlying crime. But proving that the leaders agreed that the individuals would do something can be difficult, because they would have to show some kind of meeting of the minds. . . . The best way to move up the chain in these kinds of things is by flipping someone who will testify.”
The Oath Keepers’ beginnings
Rhodes, a former Army paratrooper who wears an eye patch due to an accident with a firearm, started the Oath Keepers in 2009 with the stated mission of preventing a “full-blown totalitarian dictatorship,” and the group has emphasized recruitment among members of the military and law enforcement.
Apocalyptic talk has always been central to the appeal of the Oath Keepers. Days before the 2016 election, members spoke openly about that election sparking the country’s demise and offered an online course about what items to stock up on, how to stay warm outdoors, and how to set up a “kill zone maze” in communities to defeat imagined attackers.
By August of last year, the Oath Keepers had more than 30,000 Twitter followers, and hundreds of thousands on Facebook, before those sites barred Rhodes from posting further, saying he had incited violence, including by declaring: “Civil war is here, right now,” and predicting “open warfare with Marxist insurrectionists by Election Day.”
Rhodes’ apocalyptic rhetoric dovetailed with the Trump campaign’s “Stop the Steal” message, arguing falsely that massive voter fraud was afoot in the run-up to Election Day. Video and new court filings show contacts between Rhodes and some of the charged rioters dating back to November.
Setback for the Justice Department
On Friday, a Virginia man accused of being an organizer of the Jan. 6 assault was ordered released from jail Friday by a federal judge, who said the man did not enter the Capitol and “there’s no direct evidence that he was planning to do so that day.”
Thomas Caldwell, 66, had been in jail since an FBI raid on his home on Jan. 19, and U.S. District Judge Amit Mehta had refused to release him after a hearing on Feb. 12. But Caldwell’s lawyer said the government still had no evidence that Caldwell planned an invasion of the Capitol, he didn’t physically enter the building, and he noted that Caldwell fully cooperated with FBI agents. That included providing them the passwords to his computers and sitting for a two-hour interview, which seemed to convince Mehta that Caldwell had not destroyed evidence after the Jan. 6 siege.
Caldwell also suffers from severe back pain as a result of injuries received during his 20-year Naval career, his attorney, David Fischer, said, and was unable to receive treatment for that in the Central Virginia Regional Jail in Orange. Mehta said he took that into account, as well as Caldwell’s military service, his former top secret security clearance, and his lack of a prior criminal history.
Caldwell is indicted with conspiring to block Congress from confirming the winner of the U.S. presidential election, destroying government property, entering a restricted building and destroying evidence. The FBI said it found messages that Caldwell sent to members of the conservative Oath Keepers group lining up their arrival in Washington, and seemingly establishing a “quick reaction force” with weapons, staged outside the city, to summon during the siege if needed.
Caldwell then sent messages and photos from the Capitol on Facebook on Jan. 6 which the government interpreted as his narration of joining the crowd of rioters, while Fischer said they were merely reports to his friends watching from afar. Comments by Caldwell such as “We must smite them now and drive them down” were actually harmless hyperbole from an amateur screenwriter, Fischer said.
Fischer said Caldwell and others were planning to provide protection for Trump supporters from a feared antifa attack. He said the Oath Keepers had traveled around the country to help local police defend against violent protesters.
“Who deputized the Oath Keepers to come in and help the local police?” Mehta asked. “This notion that they are a roving band, ready and willing to step in just in case Antifa shows up seems fanciful.”
Mehta placed Caldwell on 24-hour home confinement with electronic monitoring, with no access to guns, computers or smartphones, to stay away from the District and to have no contact with anyone affiliated with the Oath Keepers.
“Believe me Mr. Caldwell,” Mehta told the defendant, “if there’s any hint of violation of these conditions, you’ll be right back where you are.”