Below is the long version of my column that ran in the Washington Times on the unusual offer made by the head of the Oath Keepers organization to testify despite his pending criminal trial for seditious conspiracy.
Here is the column:
With only one scheduled hearing remaining, the House’s Jan. 6 committee this week held a long-awaited hearing on the critical linkage between former President Trump and his aides to extremist groups like the Proud Boys and the Oath Keepers.
At the start of these hearings, committee members said there was evidence of a criminal conspiracy to overturn the 2020 presidential election through an insurrection on Capitol Hill. To establish a criminal conspiracy, the committee maintained that Trump and others in the White House colluded with these groups, who were to be the insurrection’s foot soldiers.
Committee member Rep. Adam Schiff (D-Calif.) has insisted there is “ample evidence” to support criminal charges. His colleague, Rep. Jamie Raskin (D-Md.), said the committee would show that Trump organized a “coup” on Jan. 6, 2021.
The hearings have succeeded in bringing to light much of what occurred in those critical days. The testimony has detailed extremely disturbing conduct and chilling proposals, but it has not established a clear criminal conspiracy. Indeed, much of the evidence has amplified what we already knew, rather than add significant new information on criminal conduct. If the committee is serious about such a referral to the Justice Department, it will have to make a quantum leap in evidence. Even former prosecutor and Democratic Sen. Heidi Heitkamp said that the seventh hearing showed her “as a former prosecutor myself, everything that I’ve heard, I think it would be a very tough indictment to get.”
If the Committee seriously wants to convince Attorney General Merrick Garland to charge a former president, it must produce direct, unassailable evidence, not circumstantial evidence based on “will be wild” tweets or an anonymous former Twitter employee’s testimony that “It felt as if a mob was being organized.”
The seventh hearing spent a considerable amount of time on actions not taken by Trump — a curious way to build a criminal case. There was the draft tweet that was not sent and the executive order that was never signed.
Even more curious was the selection of the long-awaited witnesses from right-wing groups involved in the attack on the Capitol. One was Jason Van Tatenhove, a former Oath Keepers spokesman who quit the group years before the riot and had no involvement in any planning or protest on that day. Tatenhove called the head of the Oath Keepers, Stewart Rhodes, as a dangerous militia leader. The other was Stephen Ayres, who illegally entered the Capitol on Jan. 6 and later pleaded guilty to a federal charge of disorderly conduct. Both offered insights into the extremism of these groups but not clear criminal linkages to Trump.
The Committee is now faced with a rather bizarre offer from Rhodes. Indeed, I cannot recall any situation quite like this one.
Despite being indicted for seditious conspiracy and facing up to 20 years in prison, he said he is willing to testify on his actions related to Jan. 6 on the condition that he does so in public, to avoid having his words edited or distorted.
The risks for Rhodes are enormous, and few defense attorneys would support such an offer. A Yale Law graduate, Rhodes knows he could not only incriminate himself on pending charges but could trigger additional charges for perjury or other crimes. It would effectively negate his right to remain silent at trial, since any committee testimony could be used at trial. It would give prosecutors not only an extensive examination of Rhodes free of limiting rules of evidence but it would expose Rhodes for any contradictions if he decides (as seems more likely given this offer) to testify at his trial.
For the committee, the potential risk of Rhodes testifying would be the loss of control and the possibility that he could hijack a hearing with extraneous, sensational or hateful statements. I can understand the reluctance to hold an open hearing. However, if Rhodes went rogue, the committee could always end the hearing.
The question now is whether the committee is willing to take the risk of an unscripted hearing to establish a criminal case against Trump. It has a witness who could confirm or refute such allegations — but that will require an unscripted, unpredictable public hearing. It would not be a controlled production by a former network executive — but the public would see an actual examination of a key player, and be able judge his credibility and culpability for themselves.
The committee has already laid the foundation for such an examination and has a long list of subjects. It could ask Rhodes about photographs with Trump associates like Roger Stone, or the storage of a weapons cache; it could secure sworn testimony on any coordination with the Proud Boys and other extreme groups.
Rhodes has maintained he believed that Trump would activate the Insurrection Act, and came prepared to be made part of a lawful militia. Witnesses have said Rhodes wanted Trump to deputize citizens under the Act but lacked contacts or “access points” in the White House. The committee would be able to ask him if anyone in the Trump campaign (or Trump himself) offered assurances or encouragement in that bizarre belief.
The committee has built a criminal conspiracy theory around these groups and Rhodes in particular. This is an opportunity to examine an alleged core conspirator in a no-holds-barred format. There are risks all around, of course, but the greatest risks would fall on Rhodes. The committee should take him up on his offer.