A federal judge quickly shot down an 11th-hour motion by Oath Keepers founder Elmer Stewart Rhodes III to appoint a special master to oversee the processing and distribution of massive amounts of evidence in the Jan. 6 seditious-conspiracy case against him and four co-defendants.
Through his new attorney, Edward Tarpley Jr., Rhodes filed a flurry of motions between Monday night and Tuesday morning. Tarpley argued that Rhodes cannot be prepared for the Sept. 27 criminal trial because, until recently, Rhodes has not had meaningful access to case evidence.
U.S. District Judge Amit Mehta was having none of it. He denied the motions on Sept. 13 and explained his reasoning on Sept. 14 in a pretrial conference at the U.S. Courthouse in Washington D.C.
Mehta bristled at Rhodes’s suggestion he has been denied access to evidence, and that he could not be ready for trial on charges he conspired with others to attack the Capitol and obstruct the counting of Electoral College votes by a joint session of Congress.
Tarpley wrote that Rhodes “has had access to meaningful discovery for just two months,” a disadvantage akin to “a little league team facing the New York Yankees.”
Judge Mehta dismissed the assertion.
“That is just flat out a false statement,” Mehta said. “His lawyers immediately received access to the case-specific discovery shortly after they entered their appearance in this matter.”
Rhodes was indicted on Jan. 12, 2022 on five federal charges. Other defendants in the case include Kelly Meggs, Jessica Watkins, Kenneth Harrelson, and Thomas Caldwell.
All of the defendants are charged with seditious conspiracy, conspiracy to obstruct an official proceeding, obstruction of an official proceeding and aiding and abetting, and conspiracy to prevent an officer from discharging any duties. Other charges lodged against some of the defendants range from destruction of property to tampering with evidence.
Rhodes Received Special Arrangement
The U.S. Marshals Service arranged to get Rhodes a computer containing discovery information, which he accessed twice per week, Mehta said. After being notified by defense counsel that wasn’t sufficient access, the court and the Marshals created a special arrangement.
“We began transporting Mr. Rhodes to this courthouse twice per week: once on Tuesday, once on Thursday [where] he could sit alone and review discovery for six hours at a time,” Mehta said. “No one—and I’ll underscore this—no one has received that kind of accommodation. Period, full stop.
“This idea that he’s only had meaningful access to discovery for two months is absolutely just false and I reject it out of hand completely.”
Mehta also denied motions to delay the trial and sever Rhodes’ case from charges against more than a dozen other Oath Keepers and associates who are being tried in September and November 2022, and February 2023.
“The idea that you would want to inject a special master for no apparent purpose, for no apparent reason a week before the trial is mystifying,” Mehta said. “You told me last week you were here in good faith. I’m starting to question that. I really am.”
On Sept. 7, Mehta ruled that Rhodes could not fire his Dallas-based defense attorneys, James Lee Bright and Phillip Linder, saying it would cause chaos that could delay the trial until summer 2023. Tarpley joined Linder and Bright at the defense table at the Sept. 14 hearing. All three men spoke at various times on behalf of Rhodes.
At the nearly daylong pretrial conference, Judge Mehta, prosecutors, and defense attorneys began to hash out logistics for the upcoming trial. Jury selection will begin Sept. 27, with opening statements expected on Oct. 3. The trial will likely stretch into November.
Attorneys made oral arguments about anticipated evidence and some of the legal issues that need rulings before the trial.
Judge Mehta asked defense lawyers to brief him on their contention that Rhodes and other Oath Keepers were not plotting to attack the Capitol, but their actions on and around Jan. 6 were taken in case President Donald Trump invoked the Insurrection Act of 1807 and called up a militia to protect the White House from feared attacks by Antifa.
Mehta said possible issues might include whether the Insurrection Act covers a so-called private militia.
“They never considered themselves a private militia,” Bright said, referring to the Oath Keepers. The Insurrection Act doesn’t just cover state-sanctioned militias such as the National Guard, Bright said.
Among the purposes of the Insurrection Act is the use of militia force or the U.S. armed forces to put down a rebellion or an attack against federal authority. The use of the U.S. military to enforce domestic law is generally prohibited by the Posse Comitatus Act. The Insurrection Act has been modified a number of times since 1807. It was last invoked in 1992 during rioting in Los Angeles.
Several defense attorneys referred to the recent indictment of witnesses as a major complicating factor in the trial.
Former Oath Keepers general counsel Kellye SoRelle was indicted Sept. 1 on four conspiracy-related charges. Michael Greene, a friend of Rhodes who ran operations for the Oath Keepers on Jan. 6, was indicted in June. In his FBI interviews in the spring of 2021, Greene disputed many of the accusations later made against the Oath Keepers by federal prosecutors.
Assistant U.S. Attorney Kathryn Rakoczy pushed back on the idea that defense witnesses were being indicted to prevent them from testifying for the Oath Keepers.
“The government is not going out and arresting people because they are witnesses,” Rakoczy said.
The potential defense witnesses in question knew they were at risk of being indicted when their cell phones were seized by the government in mid-2021, she said.
Defense attorneys said they are seeking records from the U.S. Secret Service, which was responsible for security at Trump’s Jan. 6 speech at the Ellipse. Rakoczy told the judge that prosecutors have not received any documents from the Secret Service.
Secret Service Records
Meggs’s attorney, Stanley Woodward, said his client and other Oath Keepers were asked to provide background information on themselves, then were issued passes for the VIP area at President Trump’s speech. The implication was if Meggs and others were cleared by the Secret Service to be that close to the president, they could not have been a threat to the Capitol.
When asked by Judge Mehta who made the request for information, Woodward said he preferred not to say. Part of Meggs’ motion for Secret Service records is under court seal.
Since prosecutors said they had no Secret Service data, Mehta told Woodward to draft a subpoena for him to sign.
Mehta said he has another Oath Keepers trial scheduled for Nov. 1. While he could delay that trial a few days, he said he wants to stick as close to the calendar as possible.
Noting the number of potential prosecution and defense witnesses in the case, if just two-thirds of them were called to the stand, “we’re going to be here a very long time,” Mehta said.
Rakoczy said the number of prosecution witnesses will be “in the low 40s.” The case against the five defendants will take about 3.5 weeks to present to the jury, she said.
That would mean defendants who plan to put on a case would begin calling witnesses the week of Oct. 31. The court will not be in session on Oct. 5 for Yom Kippur and Oct. 10 for Columbus Day.
Another hearing in the case is set for Sept. 22.