The lead trial of Oath Keepers founder Stewart Rhodes and four co-defendants charged with seditious conspiracy in the Jan. 6, 2021, Capitol attack will be delayed until late September after a defense expert reported finding evidence of more communications on Rhodes’s phone with accused co-conspirators than those turned over by federal prosecutors.
U.S. District Judge Amit P. Mehta in Washington postponed a July 11 trial date to Sept. 19 or Sept. 26 after defendants said they needed more time to review what they said could be critical texts and encrypted messages involving the most high-profile person charged in the wide-ranging Jan. 6 investigation.
Mehta acted after extracting a promise that co-defendants would not seek any further delays barring extraordinary circumstances in the case, in which prosecutors have leveled the historically rare charge of seditious conspiracy against members of the extremist Oath Keepers group and accused Rhodes of guiding a months-long effort to unleash politically motivated violence to prevent the swearing-in of President Biden.
“Do I have a commitment from each of you if I move the July trial date, I won’t get another request to continue trial in September absent something completely unforeseen at this point?” Mehta asked, drawing unanimous assurances.
The delay is the latest in the case, which was originally set for trial in April and is expected to last about one month, with testimony by one or more defendants. Rhodes was added to the case in January when he and 10 co-defendants were charged in an indictment that stated that he and co-conspirators “planned to stop the lawful transfer of presidential power by January 20, 2021, which included multiple ways to deploy force.” Charging papers allege that the group coordinated travel, equipment and firearms and stashed weapons outside Washington. They “were prepared to answer Rhodes’ call to take up arms at Rhodes’ direction,” the papers say.
Two of the original group who were indicted have since pleaded guilty and agreed to cooperate with federal prosecutors in exchange for leniency at sentencing — Joshua James, 34, of Arab, Ala., and Brian Ulrich, 44, of Guyton, Ga. A third longtime Oath Keepers member and North Carolina chapter leader, William Todd Wilson, 44, did the same in a stand-alone case Wednesday.
Rhodes has denied wrongdoing, including in an interview with The Washington Post in March 2021, saying there was no plan to breach the Capitol. He has said the group staged firearms in Northern Virginia in case it was needed as a “quick reaction force” if President Donald Trump invoked the Insurrection Act and mobilized to to keep himself in office.
All those facing trial have pleaded not guilty, including three defendants jailed since their arrest who are set to face a federal jury in Washington with Rhodes — Kelly Meggs and Kenneth Harrelson of Florida, and Jessica Watkins of Ohio — along with Thomas Caldwell of Virginia. Five other defendants who had been slated for a second trial in September were pushed back to trial starting Nov. 29.
An attorney for David Moerschel, an accused Oath Keepers member from Florida, renewed a push for a postponement in a court filing Wednesday, saying he believed with Harrelson and Watkins that they could not receive a fair trial in July given how much new evidence they had to review.
Defense attorney Scott Weinberg said that when prosecutors in October turned over 14 chats from Rhodes’s phone, including 40,000 texts in the encrypted Signal app, it was only a limited-in-scope subset of 15 to 25 percent of all such texts in a full raw download of Rhodes’s phone.
Defense attorneys said they could not say how many of the messages were sent or received by co-defendants or their relevance, but agreed such messages are key to proving or disproving the existence of a conspiracy in the case.
“The defense must be afforded adequate time to examine the full, raw download of Mr. Rhodes’s phone in order to be prepared for trial,” Weinberg wrote. U.S. prosecutors said the government has turned over material relevant the investigation.
The most damaging evidence lodged by the U.S. government in the 48-page 17-count indictment comes from the defendants’ own words, often shared via Signal. The indictment alleges that a core group of Rhodes’s most strident adherents planned for and participated in obstructing Congress on the day lawmakers certified Biden’s 2020 election victory.
The attack on the Capitol came after a rally outside the White House, at which Trump urged his supporters to march to Congress. The rioters injured scores of police officers and ransacked Capitol offices, halting the proceedings as lawmakers were evacuated from the House floor.
The government has charged more than two dozen alleged associates of the extremist antigovernment group on counts including conspiracy and aiding and abetting the obstruction of Congress, felonies punishable by up to 20 years in prison.
Plea papers show defendants admitting to allegations that they were among a group that forced entry through the Rotunda doors after marching single file in a stack up the steps wearing camouflage vests, helmets, goggles and Oath Keepers insignia. They acknowledged some brought rifles to Washington that were stashed beforehand at a Ballston hotel and one in Vienna.
In court filings, prosecutors alleged that the Oath Keepers group came to Washington at the urging of Rhodes and asserted that he began discussing plans to keep Trump in the White House by force as early as Nov. 9. Prosecutors allege that he exchanged dozens of encrypted messages, phone calls and other communications with members of the group stacked on the steps before and during the riot.