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FBI agent testifies for a second day in Oath Keepers trial connected to Jan. 6

MARY LOUISE KELLY, HOST:

Staying with the courts, today was the second day of testimony in the January 6 seditious conspiracy trial against Oath Keepers founder Stewart Rhodes and four others with ties to that far right group. Reminder, this is the most significant Capitol riot trial so far. NPR justice correspondent Ryan Lucas is back today at the courthouse. And, Ryan, how has the government begun to build its case?

RYAN LUCAS, BYLINE: Well, Rhodes and the other defendants are accused of plotting to use force to block the transfer of presidential power to Joe Biden. And in their opening statement yesterday, the government argued that the defendants concocted a plan for what the government called an armed rebellion to derail that transfer of power. The first witness they called was FBI Special Agent Michael Palian. He was at the Capitol on January 6, guarding senators in hiding. He later escorted them back to the Senate. And then he became one of the lead agents in the Oath Keepers investigation. He took the stand yesterday, and his testimony continued all day today.

KELLY: What did he say?

LUCAS: So prosecutors used Palian and to start laying the foundation of this case for the jury, and that means introducing text messages and audio recordings - in this case, from November 2020, so the early days of what the Justice Department says was this conspiracy. And that included a message Rhodes sent on November 7, 2020, the day that most media called the election for Joe Biden. And on that day, Rhodes wrote to a Signal chat group, quote, "the final defense is us and our rifles. Trump has one last chance right now to stand, but he will need us and our rifles too."

KELLY: Will need us and our rifles too. OK. What other ground did the FBI agent cover in his testimony?

LUCAS: So Palian also testified about a conference call that Rhodes had on November 9 with around a hundred Oath Keepers, including several co-conspirators in this case. And on that call, Rhodes talks about what the Oath Keepers should do now that Biden has been declared the winner. A tipster provided the FBI a recording of part of that call. Prosecutors played some of it for the jury today. And on that recording, Rhodes talks about how he believes the election was stolen. He talks about the need to show Trump that the people, Rhodes says, supported him, that they were willing to fight. And on the call, Rhodes also mentions the Insurrection Act, which he said Trump could have invoked to call up militias to support him. And in the recording, Rhodes says the Insurrection Act would provide the Oath Keepers with legal cover for their actions, urged people on the call also to be disciplined in their communications to avoid getting charged with conspiracy.

KELLY: OK. I want to follow up on something you just said, that a tipster provided a recording, a part of the call to the FBI. Do we know details on that, like, when that happened?

LUCAS: Right. Palian said the tipster reached out to the FBI twice, actually. The first time was on November 20, 2020, so some six weeks before the January 6 attack on the Capitol. And Palian said the FBI didn't respond to the tipster at that time. It wasn't until March of 2021, so weeks after the Capitol attack, when the tipster contacted the FBI for a second time that the FBI responded. And this gets back to questions about how the FBI and other law enforcement handled or, as critics would say, mishandled or ignored tips ahead of time that could have helped prevent the attack on the Capitol on January 6.

KELLY: All right. The defense got to cross-examine. What did they do with it?

LUCAS: So Rhodes's attorney, Philip Linder, pointed out that the Oath Keepers attended pro-Trump rallies in Washington, D.C., in November and December. And Agent Palian testified that the Oath Keepers didn't do anything illegal at those. An attorney for another defendant, Thomas Caldwell, used his questioning to try to suggest that the FBI rushed to open an investigation into Caldwell, even portraying him as a senior Oath Keeper leader when he wasn't. All of this, of course, trying to poke holes in the government's case. But look. We expect around 40 witnesses. This was the first. So we've got a long way to go here.

KELLY: NPR's Ryan Lucas. Thanks.

LUCAS: Thank you. Transcript provided by NPR, Copyright NPR.

Ryan Lucas covers the Justice Department for NPR.