"Invoke....I!"

Oath Keepers trial tests whether extremists can be called up as 'private army' by an authoritarian president https://t.co/wmCmwIw5fa

— Raw Story (@RawStory) October 3, 2022

Rhodes’ lawyers are asking Judge Amit Mehta to allow them to argue that the government’s claim of criminal intent on the Oath Keepers’ part “was negated by their reasonable reliance on Trump’s real but unexercised authority under the Insurrection Act.”

So it seems to me the argument here is that the "insurrection" in "Insurrection Act" (statute titles do NOT figure into legal analysis/statutory interpretation, btw) means the President can call an insurrection when he deems it necessary.  He would do this, of course, in order to preserve the Constitution, which he takes an oath to preserve, protect, and defend.  So, in order to save the Constitution, he must destroy the Constitution, by calling for an insurrection.

And further, he can do this by calling on private citizens who call themselves "militias".  Because sure, words never change meaning over time.  Why not?  "Militias" originally meant (until Justice Scalia decided it didn't "originally" mean that at all in the 18th century when the 2nd Amendment was drafted) government authorized military or law enforcement forces.  It only recently has come to mean "rag tag bunch of boobs and ex-military playing "war" (something kids used to do with sticks and plastic guns when I was in, oh, second grade) on the weekends.  I mean, have you seen Stewart Rhodes?  Guy wouldn't qualify for military duty in Russia's current mobilization, much less in any serious military force anywhere in the world.

But I get ahead of myself.

There's more than a slight problem with this "analysis":

Whenever there is an insurrection in any State against its government, the President may, upon the request of its legislature or of its governor if the legislature cannot be convened, call into Federal service such of the militia of the other States, in the number requested by that State, and use such of the armed forces, as he considers necessary to suppress the insurrection.

No, that doesn't apply here, but the mention of "militia" is instructive.  Who would not think that means "National Guard," or whatever state sponsored group might replace the name "National Guard" in the future?  Note, also, the use of "armed forces."  There is no confusion here that "militia" means "boys with lethal toys," and "armed forces" pretty clearly never refers to "ex-military who can't give it up."  No room for private citizens being called up by the President to attack Congress here.  And there are two issues there: 1) can the President call up a "private army" to act at his direction?  2) Can the President direct that "army" to attack Congress and halt a legally and constitutionally mandated procedure?  Yeah, I think not.

Whenever the President considers that unlawful obstructions, combinations, or assemblages, or rebellion against the authority of the United States, make it impracticable to enforce the laws of the United States in any State by the ordinary course of judicial proceedings, he may call into Federal service such of the militia of any State, and use such of the armed forces, as he considers necessary to enforce those laws or to suppress the rebellion.

"...against the authority of the United States."  Trump filed 60+ cases in court trying to reverse the outcome of the Presidential election.  He lost every case.  The rioters and insurrectionists on Jan. 5th were "an unlawful obstruction[], combination[], assemblage[], or rebellion against the authority of the United States to confirm the election of Joe Biden as POTUS.  In other words, Trump would have been authorized to call up the armed forces (or even just the National Guard) to quell the rioting at the Capitol.

What he could not do under this statute is declare the election a fraud and a violation of the Constitution (quick, Mr. President, which part?) and send in the Proud Boys to seize Senators and Congresspersons and bring the whole thing to a halt while they proclaimed Donald Trump King/President-For-Life/God Emperor...or whatever they though they were doing.

The Insurrection Act is meant to be used to stop insurrections, not use them to overthrow the government.

I suspect Stewart Rhode's attorneys have a better grasp of the law and facts in this matter than I do, and they are not necessarily depending on the plain language of 10 USC Chapter 13 for their defense.  But I honestly don't see how that statute gets them anywhere.  The news accounts are that Rhodes wants to argue he was acting in "good faith" because he believed Trump was going to "invoke P!"---no, sorry, invoke the insurrection act and authorize the Proud Boys to take the Capitol by arms and so prevent a gross violation of the Constitution by....a coup against the Constitution?  Yeah, how does this work again?

I get it: they're throwing sand in the air and hoping it gets in the jury's eyes, because sedition is already a tough crime to prove.  My sympathies are with the DOJ hoping to keep this crap out of the courtroom altogether, because it really isn't a legal defense.  It doesn't even make sense.