BOSTON (AP) – There is no doubt that the Oath Keepers were planning something on January 6. The question at the heart of the criminal case against its members and associates in the attack on the United States Capitol is: What, exactly, did they intend to do?
Authorities suggested for weeks in hearings and court documents that members of the far-right militia group planned their attack in advance in an effort to block the peaceful transition of power. But prosecutors said it was unclear whether the group was targeting Capitol before January 6.
“The plan was to illegally prevent the Electoral College’s vote certification … and the plan was to be prepared to use violence if necessary,” Assistant Attorney Kathryn Rakoczy said during a hearing this month. But the Oath Keepers “did not know precisely how force and violence could be needed to support this plan,” she said.
Authorities are still sifting through a sea of evidence in what they say is the most complex investigation ever processed by the Department of Justice. More than 300 people are facing federal charges and more are expected. The most serious accusations they were moved against 10 people described as members and associates of the Oath Keepers and several members of another extreme right-wing group, the Proud Boys.
But as the investigation unfolded, prosecutors sometimes struggled to maintain a consistent narrative and needed to review statements made at court hearings or in newspapers. It opened up space for defense lawyers to try to sow doubts in the case.
“The government put forward a theory (without evidence) that there was a weeks-long plan to break into the Capitol,” wrote an attorney for one of the Oath Keepers, Jessica Watkins, in a recent lawsuit. “That plan did not exist.”
In one case, prosecutors stated in court documents in January that there was “strong evidence” that the pro-Trump crowd intended “to capture and murder elected officials”. The Justice Department quickly clarified that it had no such evidence, blaming a failure of communication between prosecutors.
After she was pressured by a judge at a recent hearing, Rakoczy admitted that the authorities “do not currently have anyone explicitly saying, ‘Our plan is to force entry into the Capitol in order to interrupt certification'”, but warned that the investigation is ongoing.
“Part of the reason why there was not necessarily such a concrete plan as one might expect is that they were waiting and watching to see what the leadership was doing,” she said.
Just a month earlier, Rakoczy told the same judge that there was no other way to read the group’s messages about the deployment of a “rapid reaction force” outside the city, unless they needed weapons available “in the event that Capitol activities go wrong. “
“And these activities on Capitol were a planned and very well coordinated attack on the United States Capitol,” she said.
Defense lawyers argue that all the discussions that their clients had before January 6 were about providing security at the rally before the riot or protecting themselves against possible attacks by antifa activists.
Defendants can still be convicted of conspiracy to obstruct Congress, even though the plan was formulated moments before they invaded the Capitol, said Jimmy Gurule, a former federal prosecutor who is now a professor at the University of Notre Dame law school . And prosecutors have some “very compelling circumstantial evidence,” he said.
Detailed communications in court documents show the group discussing things like equipment and training in the weeks before January 6. One man suggested taking a boat to transport weapons across the Potomac River to his “waiting arms,” officials say.
In December, Kelly Meggs, who authorities say is the head of the Oath Keepers chapter in Florida, wrote in a message that she had “organized an alliance” with the Proud Boys. Days before January 6, Meggs instructed someone to tell his friend “this is not a rally,” officials say.
Many came dressed for battle on January 6, with tactical vests and helmets. The leader of the Oath Keepers, who was not charged, communicated with some of the defendants via a Signal chat called “DC OP: Jan 6 21”, which prosecutors say shows that the group was “activating a plan for use force in January 6. ”
Authorities wrote in court documents that the group not only conspired to “forcibly invade the United States Capitol on January 6, 2021 – they planned the attack in advance”. The evidence is “irrefutable”, prosecutors wrote in another document, that Watkins “recruited other people to join, trained, planned and participated in a coordinated effort to, as she put it, ‘force (e) into the Capitol building . ‘”
US District Judge Amit Mehta agreed in February to keep Thomas Caldwell, who the authorities portrayed as a conspiracy leader, arrested while he awaits trial, saying the evidence shows that he “was involved in planning and communicating with others. … to plan a potential military raid on the Capitol on January 6. ”
But after Caldwell’s attorney contested that assessment, the judge reversed his decision and released Caldwell to confinement at home. Mehta said there is no evidence that he entered the Capitol on January 6 or that he was planning to do so.
“The last time we were here 30 days ago, I was convinced it was a plan to carry out a raid on the Capitol building,” said the judge to Caldwell’s lawyer. “You have raised some evidence that, I think, refutes that notion.”
The judge has already released other defendants, noting that there is no evidence that they assaulted anyone on the Capitol or, in some cases, did not appear to be as involved in the planning before January 6.
But Mehta on Friday ordered Meggs to remain in prison, calling him a danger to the community. The judge said his communications in the weeks before the attack showed that he was planning violence on the streets of Washington, even though none specifically mentioned a plan to break into the Capitol.
Apparently, prosecutors were also unable to get on the same page about what to say to the press.
A judge recently rebuked the Department of Justice for a “60-minute” interview, during which the prosecutor who led the investigation suggested that some of the protesters might face charges of sedition. The interview with former District Attorney of Columbia, Michael Sherwin, appears to violate Department of Justice rules and Sherwin is now under internal investigation, a prosecutor told the judge.