On Tuesday, as a group of prospective jurors began filing into a federal courtroom in Washington, D.C., for the seditious conspiracy trial of Oath Keeper founder Elmer Stewart Rhodes, his eye carefully scanned each juror before they took a seat.
Rhodes and four co-defendants—Thomas Caldwell of Virginia, Kelly Meggs and Kenneth Harrelson of Florida, and Jessica Watkins of Ohio—face the weighty charge of seditious conspiracy for an alleged attempt to stop the lawful transfer of power by force from former President Donald Trump to now-President Joe Biden on Jan. 6, 2021.
Sporting his well-known eye patch, a neat dark suit, a fresh haircut, and a face mask (it is required in court), Rhodes, his fellow defendants, and a wall of their attorneys took up two tables inside of U.S. District Judge Amit Mehta’s courtroom as proceedings for the long-awaited event began in earnest.
U.S. prosecutors and defense attorneys are undertaking a rigorous vetting process this week that is expected to last a few days. There are roughly 150 jurors to sort through even after a jury questionnaire issued earlier this month helped weed out less appropriate prospects.
A group of about 30 jurors arrived at the highly secured courthouse Tuesday morning. Another group of about the same size is anticipated to undergo selection Wednesday. Depending on how quickly questioning goes and because the court will not be in session this Friday, it is very likely that opening arguments will start next week.
Rhodes, along with his co-defendants, have argued for months that finding a fair jury in D.C. would be an impossibility. But the data doesn’t bear that out, Mehta explained in court Tuesday.
Denying Rhodes’ most recent request to change trial venues from Washington to the nearby federal courthouse in Alexandria, Virginia, Mehta emphasized that the media markets were identical in both regions, so jurors would be of the same variety or have the same exposure to Jan. 6 news coverage in northern Virginia as they would in D.C. This is at least the third time that Rhodes has asked to change venues.
But more importantly, Mehta explained, when analyzing responses to the jury questionnaire for signs of prejudice, of the first 150 candidates, 40% said they had never heard of the Oath Keepers at all.
And as for claims by the defense that the Jan. 6 committee hearings would unequivocally prejudice their clients, Mehta said the questionnaire told a different tale. Just 45% of prospective jurors had even bothered to watch the hearings, he said.
The defense also suggested that a total lack of acquittals for Jan. 6 trial defendants in D.C. proves the district is prejudiced to weigh the seditious conspiracy case.
But Mehta shot that argument down too.
“That’s true as a matter of fact, but that doesn’t tell me anything about bias or inherent bias of jurors in the District of Columbia,” he said.
By midday, a handful of jurors were stricken due to concerns over their ability to be impartial. Other jurors appeared to vault through after concerns raised by defense attorney Philip Linder were brushed aside by the judge.
To wit, a woman in the pool on Tuesday with siblings who work for the federal government—but not at the U.S. Capitol—gave the defense pause due to her initial responses to the jury questionnaire. In it, she revealed that her general feelings about firearms might influence her thinking.
But when Mehta went to hash this out with her in court, he clarified that this matter had nothing to do with owning unlawful firearms.
The woman told Mehta she was confused by the framing of the question in the survey.
“That’s what lawyers do. We ask questions in a way that elicits the answer we want,” Mehta joked lightheartedly.
With her understanding now more clear, the juror said she believed she could be impartial and deliver her verdict based only on the merits of the evidence.
Rhodes’ attorney moved to strike the juror, arguing that she wasn’t credible because her answers had shifted too drastically and she had said she had “hesitation.”
But that hesitation was more about the process for jurors once trials begin, she said, and what information they might assess.
Mehta overruled the objection.
Another juror with a brother-in-law who worked as a police detective in the vicinity of the Capitol on Jan. 6 was stricken from the pool Tuesday.
Telling the court he considered himself “a righteous man,” the juror said he did not think he could judge the defendants fairly.
Beyond an aversion to the sheer violence on Jan. 6, he said it troubled him that there was a glaring racial inequity baked into the Capitol assault.
If most of the rioters on Jan. 6 had been Black, he wondered how that might have changed the response to the rioting that day.
Speaking of the defendants and others who stormed the Capitol, the man remarked: “They go down there, and nothing gets done.”
This remark prompted one observer in the courtroom Tuesday—the mother of Ashli Babbitt, Micki Witthoeft—to exclaim under her mask.
“Oh, well!” she said, unable to hide frustration on her face before abruptly leaving the courtroom.
Witthoeft was wearing a bright red shirt with a picture of the Capitol on Jan. 6 on its front. She donned a trio of bracelets, including one featuring her daughter’s name and another proclaiming “justice” for Jan. 6 defendants.
Babbitt entered the Capitol on Jan. 6, frequently screaming at police, video footage shows. She marched to the Speaker’s Lobby, where legislators were sheltering in place. Then, as a crowd surged towards the lobby door and rioters attempted to force their way in, she ignored multiple directives to stand down. All that divided lawmakers from the mob were the outnumbered officers standing guard. Babbitt ignored the warnings and hoisted herself up through a small broken pane of glass. A single shot was fired at Babbitt. She died not long after. The shooting was declared lawful by U.S. Capitol Police, and the Department of Justice declined to bring criminal charges after an investigation was conducted.
As noted by Salon, when Witthoeft appeared on a podcast with Rudy Giuliani this summer, she said if her daughter were Black, the reaction to her death would be different.
Another juror told the court he had a “strong opinion about the peaceful transfer of power” but insisted that he could be fair. As the juror fielded questions from Mehta, defense attorney Philip Linder sat at the defense table quickly reviewing the juror’s Twitter feed, which included retweets of Jan. 6 news coverage and footage.
“How do you feel about Trump voters?” Linder asked.
“I would have to have a conversation with them,” the juror replied.
“But you can’t have a conversation with the defendants,” Linder said.
The juror told him he did not “hold it against” people for voting for Trump and that he could weigh the case independent of his own opinions. He understood that each individual has a right to defend themselves in court and he would hear the evidence to determine the verdict.
When Linder later objected to this juror, Mehta overruled him.
For background on the allegations, check out Daily Kos coverage here and also here.
If convicted of seditious conspiracy, Rhodes could face up to 20 years in prison.