Oath Keepers File 11th-Hour Motion for New Trial Venue, Citing DC Bias

Oath Keepers founder Elmer Stewart Rhodes III has said the group did not attack the Capitol on Jan. 6, 2021. (Jim Urquhart/Reuters)

Four Oath Keepers and an associate accused of seditious conspiracy on Jan. 6, 2021, filed an emergency motion for a change of trial venue, citing new research that nearly 70 percent of Washington respondents hold a negative view of the Oath Keepers, much higher than those in three other federal court districts.

Attorneys for Oath Keepers founder Elmer Stewart Rhodes III, Kenneth Harrelson, Jessica Watkins, Thomas Caldwell, and Kelly Meggs filed the motion (pdf) on Sept. 23 before U.S. District Judge Amit Mehta. They renewed an earlier recommendation to move the trial to the Eastern District of Virginia.

Mehta has repeatedly denied requests for a change of venue in the case. Jury selection is scheduled to begin on Sept. 27 in Washington.

“The latent bias in this jurisdiction is now supported by sworn written responses by a jury panel and the latest targeting of these defendants in the news and action by the Select Committee,” reads the motion, which was filed by attorney David Fischer. “The effect on D.C. has been profound and a jury, even if they honestly tried, could not be fair and impartial.”

Negative News Coverage

The House Jan. 6 Select Committee published a highly misleading post on Twitter on Sept. 15 that included audio from the walkie-talkie app Zello. The post said the voices were those of the Oath Keepers, but incendiary remarks on the Jan. 6, 2021, recording came from other individuals in the public audio chat.

Mehta ruled that many of those remarks won’t be allowed at trial.

President Joe Biden, in a recent speech, described the Jan. 6, 2021, protesters as a “mob” of “insurrectionists who placed a dagger to the throat of our democracy.”

The motion states that of the 151 juror candidates for the Sept. 27 Oath Keepers trial, 51 percent admitted under oath to having prejudgment bias. Nearly 30 of those candidates were stricken from the list before jury selection for a variety of reasons.

“Defendants seek to avoid prejudgment bias where arguably, based on written responses, if you removed everyone who answered under oath that they were biased, plus everyone who reported knowing of the Oath Keepers, that would only leave about 41 arguably eligible jurors out of 151 based on sworn responses to an agreed-upon joint questionnaire issued by the court,” the motion reads.

Two Oath Keepers inside the U.S. Capitol on Jan. 6, 2021. The first Oath Keepers criminal trial is scheduled for Sept. 27, 2022. (U.S. DOJ/Screenshot via The Epoch Times)

Fischer said new survey research commissioned by defense attorneys shows substantial bias in Washington compared to the Middle District of Florida—Ocala Division, the Eastern District of North Carolina, and the Eastern District of Virginia.

A total of 68 percent in Washington hold a negative view of the Oath Keepers, compared to 36 percent in Florida, 45 percent in North Carolina, and 51 percent in Virginia, the survey found. Those with no opinion included 25 percent in Washington, 53 percent in Florida, 48 percent in North Carolina, and 40 percent in Virginia.

The supplemental survey is the fourth recent study that alleged bias among potential jurors for Jan. 6, 2021, Capitol breach cases in Washington.

A study earlier submitted to Mehta by the Oath Keepers defense found that 72 percent of Washington respondents said they would be likely to find the defendants guilty, even when given the choice, “It is too early to decide.” The figure was 37 percent in Florida and 48 percent in North Carolina and Virginia.

Nearly 85 percent in Washington characterized the events of Jan. 6, 2021, as an insurrection, attack, or riot, compared to 40 percent in Florida, 52 percent in North Carolina, and 57 percent in Virginia, according to the survey.

More than 70 percent of Washington respondents said protesters who entered the Capitol on Jan. 6, 2021, planned in advance to do so. That opinion was held by 39 percent in Florida, 49 percent in North Carolina, and 48 percent in Virginia.

A total of 40 percent of Washington respondents said they believe all of the Jan. 6, 2021, events were racially motivated, compared to 11 percent in Florida and 20 percent in North Carolina and Virginia.

Taken together, the surveys show that “a fair and impartial jury is not an option,” according to the motion.