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 a wildlife refuge building 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 this 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."
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's 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.
On Nov. 8, one day after major news networks projected Joe Biden the election winner, Rhodes shared the stage with a Virginia man later charged in the Capitol riot, Thomas Edward Caldwell. Live-streaming the small Stop the Steal rally in Purcellville, Va., on the Oath Keepers' YouTube channel, Rhodes urged viewers "to stand up now and call on the president to suppress the insurrection."
"You must declare that Joe Biden is not just not your president. He is not anybody's president. He will be a usurper, he will be a pretender, and everything that comes out of his mouth, and everything he signs into so-called legislation will be null and void from inception," Rhodes told the channel's 40,000 subscribers.
"Because if [Trump] does not do it, it will fall to us. Trump is not your last stand against the deep state against communism. We are. You are."
Caldwell, 66, a retired Navy intelligence officer, also spoke, calling Democrats "all socialists and communists" plotting to steal the election and following "the Adolf Hitler playbook."
Two days later, Rhodes told Alex Jones on Infowars.com that he had "armed" men stationed outside the District of Columbia prepared to engage in violence on Trump's command and that Trump should invoke the Insurrection Act to secure reelection.
Over the following week, prosecutors alleged Caldwell, while not a formal member of the Oath Keepers, hosted out-of-state members of the group at his home in Berryville, Va., near the West Virginia border, leading up to the pro-Trump "Million MAGA march" in Washington on Nov. 14. That same week, the group carried out "final vetting" for security volunteers at a Lowe's parking lot not far from Caldwell's home, Rhodes said.
Two of those who stayed with Caldwell, according to charging papers against them, were Jessica Watkins, a former Army private, and Donovan Crowl, a former U.S. Marine Corps mechanic, who would later be arrested and charged along with nine other Oath Keepers members or associates, including Caldwell. Prosecutors allege Caldwell and Watkins were key figures in the riot that led to five deaths and assaults on about 140 police officers.
One day after Rhodes and Caldwell spoke together, charging papers alleged, Watkins texted recruits of the small group she founded, the Ohio State Regular Militia, describing a "Basic Training class coming up in the beginning of January" and telling one recruit: "I need you fighting fit by innaugeration."
On Dec. 30, Caldwell allegedly complained to Watkins that he still hadn't been contacted by anyone about Jan. 6, adding that if Rhodes "isn't making plans, I'll take charge myself, and get the ball rolling."
However, prosecutors alleged that one day later, Watkins was invited to a "leadership only" conference call on Signal for the "DC op." She also participated with Rhodes in an encrypted Signal chat called "DC OP: Jan 6 21," in which prosecutors allege Rhodes was in contact with regional Oath Keepers leaders from multiple states.
Meanwhile, Rhodes and other Oath Keepers leaders heavily recruited members to come to Washington on Jan. 6. On a Signal chat to regional leaders, Rhodes allegedly warned against risking arrest by bringing firearms in violation of District law, saying: "Leave that outside DC." Instead, he said: "We will have several well-equipped QRFs [Quick Reaction Forces] outside DC. And there are many, many others, from other groups, who will be watching and waiting on the outside in case of worst case scenarios."
Rhodes also allegedly recommended participants wear helmets, hard gloves, eye protection, flashlights and legal weapons; "Collapsible Batons are a grey area in the law. I bring one. But I'm willing to take that risk because I love em."
The Oath Keepers issued a public call on the group's website Jan. 4 for "patriots" to come to the District "to stand tall in support of President Trump. . . . Prepare to do whatever must be done to honor our oaths to defend the Constitution against all enemies, foreign and domestic . . . whatever happens."
In a recent court filing in which prosecutors argued that Caldwell should remain behind bars while he awaits trial, prosecutors cited a message sent shortly after 2 p.m. on Jan. 6 - as the mob was storming the Capitol - by an unnamed person who allegedly led a group of Oath Keepers members providing "security" that day. It stated: They "have taken ground at the capital[.] We need to regroup any members who are not on mission."
Rhodes reposted that message to the Signal group, prosecutors said, with instructions to gather on the southeast side of the Capitol, followed at 2:41 p.m. by a photograph captioned: "South side of US Capitol. Patriots pounding on doors." At about 2:40 p.m., prosecutors say, a line of Oath Keepers members that included Watkins "forcibly entered the Capitol through the Rotunda door in the center of the east side of the building."
"We are surging forward. Doors breached," Caldwell wrote to his Facebook contacts at 2:48 p.m. from the other side of the Capitol, the government said.
Some of the charged Oath Keepers defendants have denied anyone made the decision or gave a command to enter the building. Another charged defendant denied knowing Rhodes was on the Capitol grounds.
Nevertheless, prosecutors wrote, about 4 p.m., a number of Oath Keepers members who had exited the building gathered around Rhodes, where they were photographed and recorded.
In a court filing Wednesday, Caldwell's lawyer David Fischer said prosecutors have grossly exaggerated his conduct and said the government "has effectively admitted that it does not possess one piece of 'smoking gun' evidence that the 'overt acts' that occurred before January 6th had anything to do specifically with a plot to invade the Capitol."
A court hearing for Caldwell is set for Friday.
On Thursday, prosecutors disclosed conspiracy charges against the latest Oath Keeper suspect, Army veteran Kenneth Harrelson, 41, of Brevard County, Fla., alleging that he communicated with a member of Watkins's group and was photographed with members inside the Capitol.
Watkins's lawyer has argued that she came to Washington not to join an insurrection, but to provide security to speakers, lawmakers and other marchers to the Capitol directed by the President.
Since Jan. 6, Rhodes has blasted the government's tightening circle around his organization in phone interviews, text messages and in one hour-long, in-person interview with The Washington Post.
"Just so we're clear on this: We had no plan to enter the Capitol, zero plan to do that, zero instructions to do that," Rhodes said last week in an interview in Texas.
Rhodes has maintained that he was not at the Capitol when the siege began. Once he returned and found a chaotic scene, Rhodes said, he tried to be a "good leader" and call Oath Keepers members to rendezvous outside the building, where he could "keep them out of trouble."
He said he only learned afterward that some Oath Keepers members had already entered the building.
"They got nothing," he said. "They got a message from me saying, 'Meet here.' "