A 'Clear and Convincing' Danger: Judge Orders Oath Keeper Leader Jailed Until Trial

Stewart Rhodes — the founder of the Oath Keepers — will be jailed until he faces trial on charges he plotted a “seditious conspiracy” to block the peaceful transfer of power and keep president Biden out of the White House by force. 

Judge Amit Mehta, an Obama appointee on the D.C. District Court, passed down the ruling Friday afternoon, denying a plan proposed by Rhodes’ legal team that would have let the militia leader live with a cousin in California. 

Mehta characterized Rhodes as “extremely sophisticated,” and likely able to undermine any conditions of a pre-trial release. The judge added that the government had made a “clear and convincing” case as to the militia founder’s ongoing dangerousness.

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During Friday’s proceeding Mehta reviewed the conspiracy charges and the government view that Rhodes is an ongoing “danger to plot and prepare for political violence.” He referred to Rhodes as the “top of the leadership chain” of the alleged conspiracy, and said that “if the conduct is true … the danger cannot be overstated.”

Mehta cited Rhodes’ “sophisticated and conscious” planning for violence on Jan. 6 — specifically, bringing an arsenal to the outskirts of Washington, D.C. — as behavior that “enhances the danger that Mr. Rhodes presents.” While Rhodes himself did not breach the Capitol building, Mehta said that, as the alleged leader of the conspiracy, Rhodes would be liable for the actions of his deputies, including the Oath Keepers who allegedly sought out the offices of House Speaker Nancy Pelosi.

Judge Mehta shot down several of Rhodes’ defenses. “If anyone believes this is about speech they are mistaken,” Mehta said. The judge insisted that the case was about “overt acts … in furtherance of the conspiracy.” 

Mehta added that the notion that the Oath Keepers were just on the scene to provide security made little sense given that the Oath Keepers had abandoned that security role when they stormed the Capitol. Mehta said he was “highly dubious” of the legal theory that Trump could have blessed the militia’s activities with a declaration of the Insurrection Act, and read aloud texts in which Rhodes “celebrated” the breach of the halls of Congress, insisting that Rhodes didn’t sound like a man “surprised” that his “fellow Oath Keepers had entered the Capitol without his OK or knowledge.”

Mehta said the sum of the allegations “weighs in favor of detention.” In his view, Rhodes’ mass weapons purchases after Jan. 6 were not consistent with self defense. He cited messages Rhodes had written to his subordinates about how to lay low and avoid false flag operations. He said Rhodes showed “key awareness” of how to avoid scrutiny, adding, “This is the language of someone sophisticated in avoiding detection.” The judge insisted that, were Rhodes released, there is “simply no way to fully ensure that Mr. Rhodes will not” return to his dangerous conduct.

Today’s decision affirms an earlier ruling by a federal magistrate judge in Texas who had ruled Rhodes was a significant danger to the community and should stay locked up.

Friday’s ruling follows a contentious hearing on Wednesday in which the government and Rhodes’ attorneys laid out starkly opposing views of the dangers posed by the militia leader — and Rhodes, trained as a lawyer, kept trying to interject on his own behalf.

Rhodes’ lawyers insisted that their client, lacking a passport and requiring DHS clearance to board an airplane, was not a flight risk and that he was eager for his day in court. “Mr. Rhodes does not want to avoid the trial,” Phillip Lindner, one of his attorneys argued. “He wants a public trial. He wants to testify. He’s not trying to run from anything.”

The government countered that Rhodes remained a danger because they alleged he was “the architect” and “the leader in the conspiracy” to use force to keep Trump in office. U.S. Attorney   Kathryn Rakoczy made the case that Rhodes’ violent, revolutionary outlook had not changed since Jan. 6, and and that Rhodes could tap his network of like-minded followers and possibly access large caches of weapons.

In the hearing the judge asked many questions about the heavily armed Quick Reaction Forces that Rhodes had on call across the river in Arlington, Virginia, on the day of the insurrection. Rhodes’ lawyers pointed to the fact that the QRFs were never activated as evidence of their client’s “meticulous” respect for Washington, D.C.’s gun laws, and they argued the QFRs would only have been summoned had president Trump invoked the Insurrection Act, giving the president powers to call on militias to suppress a rebellion.

The government presented their theory that the QRFs were not summoned, only because the Capitol was breached without needing their weapons, and alleged that Rhodes wanted to keep them available to fight another day. “The defendant had an eye on the larger war,” Rakoczy said, insisting that Rhodes believed Jan. 6. was only “an initial skirmish or battle in the larger war” to block the transfer of power to Joe Biden.

In making their case for why Rhodes’ respect for the rule of law was less than meticulous, the government cited several previously undisclosed text messages written by the militia leader. A Christmas 2020 chat already in the record featured Rhodes allegedly plotting to gather outside the Capitol on Jan. 6 and “scare the shit out of” Congress to “convince them it will be torches and pitchforks time if they don’t do the right thing.” 

Rakoczy read into evidence a new text from that same chat in which Rhodes wrote that the Oath Keepers wouldn’t wait around for authorization from Trump. “He must know that if he fails to act, we will,” Rhodes wrote. “He has to understand that we will have no choice.”

As Jan. 6 approached, prosecutors say, Rhodes instructed his subordinates to “be prepared for a major letdown on the 6th through the 8th, and get ready to do it ourselves.” He added: “On the 6th, they are going to put the final nail in the coffin of this republic unless we fight our way out, with Trump (preferably) or without him, we have no choice.”

Such messages continued even after the Capitol attack, but before Trump left office. On Jan 12, Rhodes wrote: “My prediction is that Trump will not invoke the Insurrection Act…. If that’s the case and he doesn’t use it to drop the damn hammer then we need to accept reality… and prepare to walk the founders’ path.” Rhodes’s texts made frequent references to the battles of the Revolutionary War. 

As he heard these arguments, Judge Mehta at times seemed skeptical of both sides. He pressed the federal government for evidence that Rhodes had personally directed the incursion of the Capitol by the Oath Keepers. The government conceded it had only circumstantial evidence — including records of a call between Rhodes and alleged co-conspirator Kelly Meggs right before Meggs entered the Capitol complex. The judge conceded that it seemed “far fetched” that Meggs had acted without authorization from Rhodes.

Mehta also pressed Rhodes’ lawyers on their client’s legal theory that the Insurrection Act could even apply to the Oath Keepers. The act, written in 1807, authorizes the president to “call into Federal service… the militia of any State.” The language, the judge noted sternly, seems to apply to forces authorized by a state government.  “Do the Oath Keepers consider themselves the militia of given states?” he asked, incredulous. He suggested they were in fact a “private militia” that had “self-designated themselves a militia that the president could call.”

At several points during Wednesday’s hearing — which was conducted by video conference, to which the media were only patched in by phone — Rhodes himself attempted to interject and add context. The judge acknowledged Rhodes’ legal training (the militiaman graduated from Yale Law school) but said: “I wouldn’t urge you do do that. That may not be the wisest choice.” Rhodes’ lawyers concurred.

Despite the government’s grave warnings, Mehta had appeared open to the notion that Rhodes might stay with extended family in California, though he shot down the notion that the militia leader could take a job at his relative’s firm. “If I release him,” the judge said, it would be “24-hour house arrest with no access to the Internet and only communications with counsel” to prepare for court. “About as strict as it gets without being behind bars,” he said, offering “nothing that would resemble regular freedoms.”

Rhodes will now remain in jail until the conclusion of the trial on conspiracy charges. Earlier in the week, Rhodes’ legal team filed a court memo, alleging the government was conspiring against him. The filing claimed the militia leader had been made into a “boogeyman” by the federal government, which had targeted the Oath Keepers as “the perfect scapegoat for the events of January 6, 2021.” 

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