01.06.2023
J6ers await their pardon
Stewart Rhodes, leader of the Oath Keepers, has been handed a 18-year sentence. Daniel Lazare gives notice that the ultra-right combatants of Trump’s January 6 self-coup attempt could soon be free
A US federal judge last week sentenced Stewart Rhodes, leader of an ultra-right militia known as the Oath Keepers, to 18 years in prison for his role in the Capitol Hill insurrection on January 6 2021.
It is the stiffest sentence handed down to any of the thousand-plus January 6 defendants to date, and Rhodes was defiant: “I’m a political prisoner like president Trump and my only crime is opposing those who are destroying our country,” he told judge Amit Mehta. “I used my protected speech as we had done throughout the Trump administration out of necessity because of systemic violence of the left.”
Unimpressed, Mehta described Rhodes as “an ongoing threat and peril to this country and to the fabric of this country,” adding:
You are smart, charismatic and compelling, and that is, frankly, what makes you dangerous ... The reality is, based on the words we hear you speak, the moment you are released, you will be prepared to take up arms against your government.
Since Rhodes is in his mid-50s, the sentence means that he will be behind bars until he is well into his 70s, at which point the ‘emergency’ will have passed and he will no longer be a threat.
Or so America’s enervated political establishment hopes. But there is a significant chance that Rhodes will not serve out his sentence, since the two leading Republican candidates have both indicated that they will pardon many - if not most - J6ers as soon as they enter the White House. “I can’t say for every single one because a couple of them, probably they got out of control,” Donald Trump told a CNN “town hall” meeting on May 11. “But ... they’ve persecuted these people. And, yeah, my answer is I am most likely [to pardon]. If I get in, I will most likely. I would say it will be a large portion of them, and it’ll be very early on.”1
Not to be outdone, Florida governor Ron DeSantis - who actually accused Trump of “going left” in a recent interview - promised to “use the pardon power ... at the front end” of his administration if he takes over instead:
Now, [in] some of these cases, some people may have a technical violation of the law. But if there are three other people who did the same thing but just in a context, like [the Black Lives Matter protests in 2020] and they don’t get prosecuted at all, that is uneven application of justice, and so … we will use the pardon power.2
With polls showing both men running neck and neck with Joe Biden in 2024, or even pulling out ahead, such promises may well come true.3 If so, Rhodes could be in a position to resume his old activities sooner than people think, while the January 6 uprising will emerge victorious after a four-year delay. Unable to defend itself against would-be putschists, what little is left of America’s tired semi-democracy will finally give up the ghost.
In the meantime, the factors that led to January 6 have not gone away, but have only gotten worse. Although Democrats want to blame the crack-up on Trump, the fact is that he is the product of a decades-long failure as much as the cause.
Perfect example
The Oath Keepers are a perfect example of how the process works and why it promises to continue. If they differ from other militias, it is because they draw heavily from the ranks of the military and police. Their name comes from the US military’s oath of enlistment that requires all military personnel to “solemnly swear” to “support and defend the constitution of the United States against all enemies foreign and domestic.” The Oath Keepers website explains why this is significant:
That oath, mandated by article VI of the constitution itself, is to the constitution, not to the politicians, and Oath Keepers declare that they will not obey unconstitutional orders, such as orders to disarm the American people, to conduct warrantless searches, or to detain Americans as ‘enemy combatants’ in violation of their ancient right to jury trial.4
Given the increasingly undemocratic nature of the US constitution, this is a rationale for opposing any new-fangled law or initiative that the group regards as contrary to America’s ancient constitution.
Moreover, it is not just the ancient constitution in general, but a specific part. This is the second amendment, ratified in 1791, which famously declares: “A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”
Hence, the first item on the Oath Keepers’ list of “orders we will not obey” is “any order to disarm the American people.” As the website puts it,
The attempt to disarm the people on April 19 1775 [at the Battle of Lexington and Concord] was the spark of open conflict in the American Revolution. That vile attempt was an act of war, and the American people fought back in justified, righteous self-defence of their natural rights. Any such order today would also be an act of war against the American people, and thus an act of treason. We will not make war on our own people, and we will not commit treason by obeying any such treasonous order. Nor will we assist, or support, any such attempt to disarm the people by other government entities, either state or federal.
If disarming the people was vile in the 18th century, then the Oath Keepers see it as no less vile in the 21st. The January 6 uprising was thus constitutional in their view, in that it sought to block a Democrat whose goal was to rob Americans of their ancient liberties by taking away their means of self-defence.
It would be nice to report that all this is so much nonsense on the part of half-baked constitutionalists who fail to realize that the Constitution is a “living” document endlessly suited to the needs of modern society. But this is a self-serving liberal myth. As a wide range of legal scholars now recognize, it’s impossible to dismiss out of hand a right to bear arms adopted in the wake of Lexington and Concord when memories of patriotic militiamen driving off the British were still vivid and fresh.
It’s also no longer possible to argue in favour of a minimalist reading of the Second Amendment - one that sees the right to bear arms as guaranteeing nothing more than the right to join a well-regulated militia in the form of the US National Guard - while simultaneously adhering to a maximalist reading of the First Amendment, in which the dictum that “Congress shall make no law ... abridging the freedom of speech or of the press” means that Americans can surf the internet to their heart’s content, soak up all the porn they want, go to drag shows, or party away on gay-pride day. How can liberals narrow one ancient right to the vanishing point while allowing another to expand and expand?
The question is not whether allowing militias to parade about with AR-15s is nuts - it is nuts - but whether a fair and accurate reading of an 18th century text that is effectively unchangeable says that is what they are allowed to do - which a growing academic consensus says it does. Moreover, as one constitutional scholar argued in 1989, the amendment’s language is so sweeping that it all but amounts to a mini-constitution in its own right - one that outlines a theory of government very different from representative government in distant Washington:
Just as ordinary citizens should participate actively in governmental decision-making through offering their own deliberative insights, rather than be confined to casting ballots once every two or four years for those very few individuals who will actually make the decisions, so should ordinary citizens participate in the process of law enforcement and defence of liberty rather than rely on professionalised peacekeepers, whether we call them standing armies or police.5
This is government of, by and for embattled suburbanites, who believe that Black Lives Matter is coming to burn down their homes or that United Nations black helicopters will soon herd them off into concentration camps. Since the Oath Keepers see “professionalised peacekeepers” as wholly in the pocket of anti-constitutional forces, this is a recipe for civil war by gun owners - against liberals bent on taking them away. The more the gun wars intensify, the deeper the US descends into authoritarianism and violence.
Spooky
Rhodes is no dummy. After receiving an honourable military discharge following a parachute injury, he went to work for Rand Paul, a far-right libertarian congressman from Texas, and then won admission to Yale Law School, where he defended gun rights and received an academic prize for a paper criticising George W Bush’s use of the term “enemy combatants” to describe alleged Muslim terrorists.6
According to one account, he came under the sway of a far-right libertarian named Edwin Vieira Jr - a Harvard law grad who has written several books on the second amendment and who argued in 2012 that the president can create a new militia “at one stroke” by invoking the Insurrection Act of 1807, which allows him or her to mobilise both the military and the people at large against disorder or rebellion.7
This is just what Rhodes urged following the November 2020 election. He wrote to Trump in an open letter:
Biden is an illegitimate Chicom puppet. He is about to get his hands on the nuclear codes and command of all our armed forces. You must use the insurrection act and use the power of the presidency to stop him. And all us veterans will support you and so will the vast majority of the military.
As spooky as this was, it did not arise out of thin air. Rather, it is the result of an ancient constitution pushing America over the edge, the more it breaks down. While Democrats think they can solve the problem by locking people up, the only real solution lies in radically overhauling the US political structure from top to bottom - something that only a militant workers’ democracy can do.
Another factor was at work on January 6 - the crisis of imperialism. Following Biden’s victory, the Oath Keepers website posted an 11-minute video by a Serbian nationalist named Aleksandar Savič. His message: members should to take a lesson from rightwing protesters who toppled Serbian president Slobodan Milošević in October 2000. He thus urged them to gather in the capital, swarm over and around police blockades, storm parliament, and then burn down pro-government TV stations - which is what rightists did in Serbia and what, except for the last item, rightists would again do in Washington DC. Savič said:
They are going to steal the elections - this is inevitable ... Twitter is going to censor you, Facebook is going to censor you, everybody is going to censor you; they’re going to call you names; you will be racist, fascist, supremacist, whatever. Don’t be afraid, it’s normal ...
So, yes, with your determination and your strength, you can make a difference. People from all over the world are watching you ... You will have no future if you fail now. You must not fail ... You must fight for this justice.
“The man knows of what he speaks,” the Oath Keepers website added.8 So militia members set about following Savič’s instructions in full.
What is ironic, of course, is that the US backed the anti- Milošević campaign to the hilt and that Biden was in the thick of it as chairman of the Senate foreign relations committee. A master of anti-Serbian invective, he called in 1998 for the of bombing Belgrade and the blowing up of “all the bridges on the Drina”, In 1999, he said US troops “should go to Belgrade and have a Japanese-German-style occupation of that country”. In 2002, he said that “until [the Serbs] look in their hearts, they can never cure themselves of the disease that they are the oppressed and, as long as they operate on that standard, the cycle will continue and continue and continue.”9
The punishment would not stop until Serbs confessed their sins. Meanwhile, officials regaled Biden’s committee with tales about how they had created a “ring around Serbia” by bombarding it with propaganda broadcasts from neighbouring Bosnia and Montenegro, how they had spent $16.5 million in support of “democratisation” and how they had spent another $20 million to encourage Montenegro’s president, Milo Djukanovič, to break with Milošević in 1998.10
After helping to overthrowing Serbia’s leader in 2000, Biden now finds himself beset by the same kind of rightwing colour revolution at home. What goes around comes around - which is why locking Stewart Rhodes away will not change a thing.
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. See my article, ‘A tale of two liars’, May 18: weeklyworker.co.uk/worker/1443/a-tale-of-two-liars.↩︎
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The New York Times May 25.↩︎
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web.archive.org/web/20201112041809/https://oathkeepers.org/about.↩︎
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www.nytimes.com/2022/11/21/us/stewart-rhodes-oath-keepers-yale-law.html.↩︎
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www.newyorker.com/news/news-desk/the-oath-keepers-radical-legal-defense-of-january-6th.↩︎
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www.marxist.com/revolution-and-counter-revolution-in-yugoslavia.htm.↩︎