How Trump’s flirtation with an anti-insurrection law inspired Jan. 6 insurrection

By Devlin Barrett and ,

Susan Walsh AP

Stewart Rhodes, founder of the citizen militia group known as the Oath Keepers, speaks at a rally outside the White House in 2017.

Within days of President Donald Trump’s election defeat, Stewart Rhodes began talking about the Insurrection Act as critical to the country’s future.

The bombastic founder of the extremist group Oath Keepers told followers that the obscure, rarely used law would allow Trump to declare a national emergency so dire that the military, militias or both would be called out to keep him in the White House.

Appearing Nov. 9, 2020, as a guest on the Infowars program of conspiracy theorist Alex Jones, Rhodes urged Trump to invoke the act “to suppress the Deep State” and claimed Oath Keepers already had men “stationed outside D.C. as a nuclear option.”

Invoking the Insurrection Act was an idea sparked in conservative circles that spring as a means of subduing social justice protests and related rioting, a goal that Trump seemed to embrace when he called for state leaders to “dominate” their streets. By the end of the year, it had become a rallying cry to cancel the results of a presidential election. Now, private and public discussions of the law stand as key evidence in the cases against the Oath Keepers.

Earlier this month, Rhodes was charged with seditious conspiracy, accused along with 10 members of his group of conspiring to use violence to try to stop Joe Biden’s certification as president. Rhodes has denied wrongdoing, saying he never wanted or told his group to enter the U.S. Capitol.

A court hearing on Monday in Plano, Tex., will determine whether he must stay in jail while awaiting trial.

[Justice Dept. alleges Jan. 6 was a seditious conspiracy. Will it charge Trump?]

Court filings and public statements leading up to Jan. 6 show how important the idea of the Insurrection Act became to Rhodes and other extremists, including followers of the ever-changing QAnon conspiracy theories, and to the president and people close to him.

“It is hard to put into words how mind-boggling this idea was, to use a statute designed to protect the country from insurrection to support an actual insurrection,” said Brian Levin, director of the Center for the Study of Hate and Extremism at California State University at San Bernardino.

The act was last used in 1992 to quell days of protests and rioting in Los Angeles after four police officers accused of beating motorist Rodney King were found not guilty. The 1807 law was used at the request of California’s governor, to federalize the California National Guard units to quell the riots.

Indictments filed in the Jan. 6 investigation show Rhodes’s followers were drawn to Washington partly in the hope that Trump would invoke the law once more, transforming the Oath Keepers into a kind of shock troop militia to smite imagined rioters, government officials, and anyone who tried to make Biden’s election victory a reality.

“If Trump activates the Insurrection Act, I’d hate to miss it,” Oath Keeper Jessica Watkins of Ohio wrote a week before Jan. 6, 2020, according to court papers. Around the same time, Kelly Meggs, the head of the Florida chapter of Oath Keepers, allegedly predicted in a separate conversation that Trump would stay in power and “claim the insurrection act.”

That notion began gaining steam in late May 2020, when mass protests over the police killing of George Floyd in Minneapolis prompted Trump and some of his supporters to suggest the military be called out to put an end to sporadic unrest.

Q, the mysterious online persona whose pronouncements fed the amorphous QAnon conspiracy theory, suggested that the president invoke the law, adding cryptically, “Call the ball” — an obscure piece of military aviation jargon used in the movie “Top Gun.”

Michael S. Williamson

The Washington Post

Protesters chant “Hands up, don’t shoot!” as smoke from tear gas lingers near Lafayette Square across from the White House in the early hours of May 31, 2020.

[Texas man charged with threatening Georgia officials over 2020 election]

Within days, Trump was suggesting much the same, and Sen. Tom Cotton (R-Ark.) penned a New York Times editorial urging the law’s use. But after the nation watched disturbing images of federal agents using tear gas to disperse peaceful protesters near the White House, government officials, including the defense secretary, Mark T. Esper, publicly opposed invoking the Insurrection Act to deal with protests or rioters.

Trump didn’t let it go, declaring later that summer that he was still considering it. Other pro-Trump activists, like his former national security adviser Michael Flynn, issued similar calls for Trump to declare “martial law.”

“Our country’s going to change,” Trump said. “We’re not supposed to go in, unless we call it an ‘insurrection.’ But you know what we’re going to do? We’re going to have to look at it.”

That message resonated with some of Trump’s most fervent supporters — particularly the Oath Keepers.

“Whatever you think of him, the president’s words were taken by the more organized and hardened extremists as a call to action,” said Levin, the researcher. Trump’s public flirtation with the Insurrection Act fit into what Levin said was a longer, disturbing trend among far-right extremists who oppose the government.

In the 1990s, such “insurrectionist doctrine” was centered largely on a perceived threat to the Second Amendment right to own guns, and more radical advocates declared they would use violence to defend gun ownership, Levin said.

But over time, extremists brought the same logic to all sorts of issues, from federal land regulations to coronavirus restrictions and, in late 2020, to refusing to accept Joe Biden’s electoral victory.

“Insurrectionist doctrine has morphed into a much broader argument that now tries to justify violent aggression against the routine functioning of government,” Levin said. “Last year, it was used as a dagger to interfere with the constitutional and peaceful transfer of power. That’s extraordinarily troubling, and the kind of conduct we see in authoritarian regimes.”

[Before, During, After: The Jan. 6 attack]

Collin County Sheriff’s Office/AP

Stewart Rhodes

By mid-December 2020, Rhodes was explicitly tying his apocalyptic notions of a looming civil war to Trump’s decision about whether to invoke the law.

“He needs to use that now, he needs to invoke the Insurrection Act and suppress this insurrection,” Rhodes said to cheers from a crowd at a pro-Trump rally in Washington on Dec. 12.

Rhodes, wearing a black cowboy hat with the Oath Keepers insignia, called for the release of what he called secret government files to “show the world who the traitors are, and then use the Insurrection Act to drop the hammer on them.”

He added: “If he does not do it now, while he is commander in chief, we are going to have to do it ourselves later, in a much more desperate, much more bloody war.”

Prosecutors say the Oath Keepers spent the weeks leading up to the breach of the Capitol preparing for just such violence — packing an arsenal to stash just outside the nation’s capital in case they wanted their weapons quickly, developing communications plans and urging supporters to converge on Washington, at least partly in the hope that Trump would invoke the Insurrection Act.

On the afternoon of Jan. 6, as an angry mob descended on the Capitol, Rhodes allegedly sent a message to his Oath Keepers leadership group: “All I see Trump doing is complaining. I see no attempt by him to do anything. So the patriots are taking it in their own hands. They’ve had enough.”

About an hour after that message was sent, prosecutors say, some of the Oath Keepers who received it stormed the white-domed building.

Leah Millis

Reuters

Supporters of President Donald Trump storm the Capitol on Jan. 6, 2021.

[Stewart Rhodes and the Oath Keepers: What you need to know]

The Insurrection Act is not just part of the case against Rhodes, who faces up to 20 years in prison if convicted of seditious conspiracy. It’s part of his defense.

In an interview with The Washington Post last February, Rhodes acknowledged his group had a cache of weapons outside the city, saying the so-called quick-reaction force was “only if the president calls us up.”

“We thought antifa might try to storm the White House,” he said, without evidence. If such a thing happened, he argued, D.C. gun restrictions would no longer apply, because “we would have been part of the military.”