The lawyer, Kellye SoRelle, has been charged with working with the far-right militia to disrupt the 2020 election. Now, her text messages — and testimony — could emerge as evidence at their trial.
In the normal course of business, lawyers like Kellye SoRelle wear a variety of hats for their clients: They might keep secrets for them, offer them advice or defend them against charges.
But Ms. SoRelle has a far more fraught relationship with one of her biggest former clients: the Oath Keepers militia.
Last month, Ms. SoRelle was indicted on conspiracy charges, accused of working with the far-right group in its monthslong plot to disrupt the certification of the 2020 election.
Now, she has found herself at the center of a battle over whether her text messages — and testimony — can be used as evidence at the seditious conspiracy trial of Stewart Rhodes, the leader of the Oath Keepers, and four of his subordinates.
The struggle between the defense and prosecution over how to define Ms. SoRelle’s role at the trial revolves around the issue of attorney-client privilege, which generally bars lawyers from disclosing private information about their clients.
The dispute has become more complicated because the Oath Keepers may seek to call Ms. SoRelle as a witness in the case and defend themselves against some of the charges they are facing by claiming they were merely following her instructions in what is known as an advice-of-counsel defense.
The boundaries of attorney-client privilege often become a matter of legal dispute. Lawyers for former President Donald J. Trump are fighting to use the protections of attorney-client privilege — and executive privilege — to limit the scope of a grand jury investigation into the role that Mr. Trump played in seeking to overturn his defeat in the election. Other lawyers for Mr. Trump are facing the prospect of becoming witnesses against him in a separate Justice Department inquiry into his handling of classified documents.
On Monday night, before the Oath Keepers trial resumed in Federal District Court in Washington on Tuesday, prosecutors filed court papers asking a judge to set aside attorney-client privilege and admit text messages that Ms. SoRelle had swapped with Mr. Rhodes in the days leading up to the attack on the Capitol on Jan. 6, 2021.
In one of the messages, from Dec. 29, 2020, Mr. Rhodes complained that he was getting tired of showing up at pro-Trump rallies in Washington where members of his group and other Trump supporters would simply “wave a sign, pray or yell.”
“They won’t fear us,” Mr. Rhodes wrote to Ms. SoRelle, “till we come with rifles in hand.”
Prosecutors argued that the incendiary message should not be protected by attorney-client privilege because Ms. SoRelle, despite having described herself as the Oath Keepers’ general counsel, did not perform any legal work for the group until after the Capitol was attacked.
Ms. SoRelle also played “an active role in the conspiracy” to disrupt the certification of the election, prosecutors wrote, so any communications between her and the Oath Keepers should be exempt from privilege under what is known as the “crime-fraud exception.”
Based in Texas, Ms. SoRelle first emerged into the public eye one day after Election Day when, as a member of a group called Lawyers for Trump, she raised claims in a widely seen video that election workers in Detroit had committed voter fraud. Around the same time, prosecutors say, the Oath Keepers began to work for her as bodyguards.
By the following month, she had signed her name to two open letters to Mr. Trump that Mr. Rhodes had posted on the Oath Keepers website. The letters, introduced as evidence at the trial last week, called on Mr. Trump to take a series of aggressive steps to remain in power, including invoking the Insurrection Act, a move that Mr. Rhodes believed would have given Mr. Trump the authority to mobilize militias like his own to suppress the “coup” that was seeking to unseat him.
While Mr. Rhodes has so far been the focus of the trial, testimony turned on Tuesday to one of his co-defendants, Jessica Watkins, an Ohio bar owner who ran her own militia in the state.
Prosecutors introduced that evidence that Ms. Watkins had discussed cutting off pool cues to serve as “antifa smashers” at pro-Trump rallies in Washington and sought to recruit and train people to join the Oath Keepers at the events.
One of the recruits sent a message to Ms. Watkins in mid-November of 2020 asking, “So should I get comfortable with the idea of death?”
“That’s why I do what I do,” Ms. Watkins responded.
Both defense lawyers and the government have claimed that Ms. SoRelle was, for a time, romantically involved with Mr. Rhodes, though she has said that is not true. She did not respond to messages seeking comment.
Regardless of how she felt about Mr. Rhodes, there is no doubt that she did things for — and with — him that went beyond the typical services rendered to a legal client.
The day before the Capitol attack, Ms. SoRelle accompanied Mr. Rhodes to a meeting in an underground parking garage near the Capitol where the two encountered Enrique Tarrio, the former chairman of another far-right group, the Proud Boys, and Mr. Tarrio’s longtime associate, Bianca Gracia, the leader of a group called Latinos for Trump. Mr. Tarrio is facing seditious conspiracy and other charges in connection with the Capitol attack.
On Jan. 6, Ms. SoRelle followed Mr. Rhodes into a restricted area on the Capitol grounds, giving a celebratory play-by-play of the mob breaching barriers at the building on a Facebook livestream.
“That’s how you take your government back,” she said. “You literally take it back.”
After Mr. Rhodes fled Washington that day, fearing the authorities were after him, Ms. SoRelle took possession of his cellphone, the government said in the papers filed on Monday. Prosecutors claim that within two days, she had started sending orders in Mr. Rhodes’s name to other Oath Keepers, telling them to delete any incriminating messages and to stop discussing their roles in the Capitol attack.
“CLAM UP,” she wrote at one point. “DO NOT SAY A DAMN THING.”
For more than a year after Jan. 6, it remained unclear whether Ms. SoRelle would be charged. Even though the F.B.I. seized her phone and eventually arrested more than 20 members of the Oath Keepers — including Mr. Rhodes — she remained at large.
During that time, she often told reporters she was cooperating with the government’s inquiry into the group and also claimed to have spoken repeatedly to staff investigators working with the House select committee investigating Jan. 6. Mr. Rhodes’s lawyers have said that it was only after Ms. SoRelle agreed this summer to testify at the trial on his behalf that the F.B.I. arrested her.
The lawyers have further said they may call Ms. SoRelle as a witness, hoping that she bolsters one of Mr. Rhodes’s chief defenses in the case.
The government has accused Mr. Rhodes of staging a heavily armed “quick reaction force” in hotel rooms in Virginia that was poised to rush to the aid of their compatriots at the Capitol if things got out of hand.
While Mr. Rhodes’s lawyers have not disputed that there was a quick reaction force, they have argued that if Mr. Trump had invoked the Insurrection Act, as Mr. Rhodes recommended, it would have given the Oath Keepers standing as a militia to use force of arms in support of Mr. Trump.
Ms. SoRelle gave this legal strategy her professional stamp of approval, telling the Oath Keepers they could “lawfully assist” Mr. Trump in putting down an insurrection, Mr. Rhodes’s lawyers said in court papers last month.
The lawyers have argued that if Mr. Rhodes was simply following legal advice, he could not be held accountable for showing “any unlawful intent.”
The gambit, however, is far from certain to work. While no one knows what Ms. SoRelle will do if called to the witness stand, she has repeatedly told reporters that she will exercise her Fifth Amendment right against self-incrimination.
Source: Elections - nytimes.com
