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Oath Keepers seditious conspiracy trial on track for Sept. 26 as probes mount

Landmark Jan. 6 case will seize public spotlight as midterm elections near and Justice Dept. widens, restructures investigation

Oath Keepers founder Stewart Rhodes appears on-screen above members of the House committee investigating the Jan. 6, 2021, attack on the Capitol. (Anna Moneymaker/Getty Images)
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A federal judge on Tuesday refused to postpone the Sept. 26 trial of Oath Keepers founder Stewart Rhodes and four co-defendants charged with seditious conspiracy in the Jan. 6, 2021, Capitol attack, rejecting defense claims that ongoing high-profile House hearings that month would hopelessly bias potential jurors.

The decision by U.S. District Judge Amit P. Mehta of Washington ensures public debate over the attack on Congress will remain on display deep into the 2022 midterm congressional elections, even as House Jan. 6 investigators prepare to release a public report and the Justice Department has widened and restructured its probe to include former president Donald Trump’s actions that day.

Prosecutors in Washington have beefed up and reorganized staff ahead of the seditious conspiracy trial against the Oath Keepers, one of the most consequential cases to emerge to date in the sprawling investigation of the Capitol riot. A federal indictment alleges that members coordinated travel, staged weapons outside Washington, and converged on the East Capitol steps in helmets and military tactical gear as part of a conspiracy to use force “at Rhodes’ direction” to oppose the authority of the federal government and the lawful transfer of power to President Biden.

But attorneys for accused members of the extremist right-wing group last month asked to delay the trial until January 2023 after the House select committee investigating the attack announced that it would hold more hearings in September, following eight televised hearings in June and July, and that it would soon release a public report and roughly 1,000 witness interview transcripts.

“It’s not our fault that one branch of government … has decided to launch a very huge, heavily publicized, and obvious public spectacle about January 6,” Rhodes attorney Phillip A. Linder argued in court Tuesday. “My client is being denied his right to have a fair trial,” he added, citing severe limitations on Rhodes’s ability to access evidence and aid his defense from the Alexandria, Va., jail, where he has been held pending trial.

But Mehta rejected the request after a two-hour hearing, saying the trial has already been delayed twice since April. The judge said the interests of the public and other jailed defendants waiting their turn to go to court weighed heavily in his decision, as did the courts’ lack of control over an independent branch of government. “The court’s docket cannot be dictated by how Congress is acting and what they are doing … I have no influence over what they do and when they do it. What I do have control over is whether these defendants receive a fair trial through the most vigorous voir dire process that can happen,” the judge said.

Mehta said nearly 10 federal jury trials related to Jan. 6 have been held in Washington this year without difficulty finding qualified jurors, including last month, when a panel of 12 people and two alternates were seated in one day for former Trump aide Stephen K. Bannon’s contempt-of-Congress trial. The judge also said any prejudice met by the Oath Keepers defendants next month will not be significantly greater than that faced by 2013 Boston Marathon bomber Dzhokhar Tsarnaev — who went to trial two years later in that city — or by top aides to President Richard M. Nixon — who faced trial two months after historic Senate impeachment hearings into the Watergate coverup.

Mehta’s ruling and his promise to revisit the matter if the House reveals new evidence in the case highlights how current and newly emerging lines of investigation are creating choppy waters for the court, defense attorneys and prosecutors alike, with the U.S. attorney’s office for Washington restructuring to deal with the Jan. 6 investigation’s ever-growing existing and future caseload.

Prosecutors in recent weeks have begun questioning witnesses before a grand jury meeting on Fridays in Washington, including with two top aides to Vice President Mike Pence and “Stop the Steal” movement organizer Ali Alexander.

U.S. Attorney Matthew M. Graves of Washington, who took over in November and whose office is overseeing Jan. 6 prosecutions in partnership with the Justice Department’s criminal and national security divisions in a number of cases, announced in February the formation of a Capitol siege section under John Crabb, then the criminal division’s chief.

The new section streamlined reporting chains for prosecutors assigned to riot cases from across the office, and since February, it has been in the process of adding positions, including about 20 two-year-term slots, supplementing prosecutors previously detailed from U.S. attorney offices around the country, the office said. Former fraud, public corruption and civil rights section head J.P. Cooney has also taken a managerial role in the new siege section.

The unit includes Thomas Windom, a veteran U.S. prosecutor from Maryland who has signed subpoenas issued to people in the effort to substitute Trump allies for certified electors from some states Biden won, including Arizona and Georgia, as well as court papers related to the seizure of the cellphone of outside Trump lawyer John Eastman.

The actions are part of the department’s investigation of potential fraud associated with the false-electors scheme or with pressure Trump and his allies allegedly put on the Justice Department and others to falsely claim that the election was rigged and votes were fraudulently cast.

Justice Dept. investigating Trump’s actions in Jan. 6 criminal probe

In court Tuesday, Oath Keepers prosecutor Kathryn Rakoczy argued against postponing Rhodes’s trial, saying it was not clear that publicity about the Capitol riots would subside by January as jockeying for the 2024 presidential election begins.

Mehta agreed and warned prosecutors that they had their work cut out for them, particularly if defendants’ claims are borne out that the government has yet to turn over all potentially exculpatory evidence.

Mehta said he did not think the case would be a slam-dunk for prosecutors, adding: “I don’t think jurors of Washington, D.C., will think so, either.”

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