Left: Stewart Rhodes, via Collin County (Tex.) Jail. Right: U.S. District Judge Amit Mehta, via U.S. District Court for the District of Columbia.
The federal judge overseeing the government’s prosecution of members of the right-wing Oath Keepers extremist group has denied what he called an “eleventh-hour” motion by the militia’s leader to change lawyers and postpone trial, which is set to start in under three weeks.
Stewart Rhodes, who faces seditious conspiracy and other charges in connection with the Jan. 6 siege at the U.S. Capitol, filed an “emergency motion to substitute counsel and continue trial” on Tuesday, alleging that his lawyers Philip Linder and James Lee Bright of all but abandoned him, and asking for attorney Edward Tarpley, Jr. to take over the case.
U.S. District Judge Amit Mehta quickly calendared the matter for a hearing on Wednesday, and the Justice Department filed an opposition to Rhodes’ request.
“While the defendant has a right to counsel of his choice, that right is not absolute, and it should not be elevated above the public’s right to a speedy trial of the alleged leader of a seditious conspiracy aimed at stopping the transfer of presidential power,” the DOJ’s opposition memo said.
Mehta agreed with the government, and denied Rhodes’ request.
“The Court denies Defendant’s [] Motion for the reasons stated on the record,” a minute order filed to the court docket said late Wednesday following the hearing.
The tersely worded minute order, however, belies the extensive analysis reflected in Mehta’s decision to remove Bright and Linder from the case, and some of the emphatic words and sharp exchanges that took place during the hearing.
Judge Mehta: Allegations Against Rhodes’ Attorneys Are “Complete and Utter Nonsense.”
“I want to, at the outset, make this record completely clear that I think there are a number of incorrect and frankly bewildering statements that are made in the motion, so I want there to be no misunderstanding or misimpression of what the real facts are,” Mehta began. “The very first allegation is that somehow Mr. Rhodes is being denied a fair trial and that is simply false.”
Mehta said that Rhodes “has received every dispensation from this court” that his lawyers have asked, including the September trial date that Bright and Linder requested earlier this year.
“Mr. Rhodes hired outside counsel, knowing that he would be tried in the District of Columbia,” Mehta said regarding Rhodes’ claimed difficulty in accessing discovery. “That was his choice,” the judge added, noting that having lawyers in Texas presents more challenges than if his lawyers were in Washington.
Nevertheless, Mehta noted, great efforts have been made to accommodate and help Rhodes.
“It should be clear and understood: Mr. Rhodes is getting dispensation in this case to get access to electronic discovery that no other defendant — no other defendant to my knowledge — is getting in any Jan. 6 case, [or] in any case … to my knowledge in this district.”
Mehta said that arrangements have been made with the U.S. Marshals Service to bring Rhodes to the federal courthouse twice a week, for six hours at a time, in order to review discovery.
“No other defendant is getting that accommodation,” Mehta said. “No one.”
The judge also marveled at the fact that he is just now hearing about the conflict between Rhodes and his lawyers, despite the fact that there have been three hearings or status conferences in the month of August alone, and Rhodes has been present at each one.
“Never, not once at one of those hearings have I heard a peep from Mr. Rhodes about his lack of contact with his lawyers, or his disenchantment with his lawyers’ performance,” Mehta said.
Mehta said that contrary to Rhodes’ motion, both Linder and Bright have been exemplary throughout the course of the litigation so far.
“From where I sit, his two counsel have not only been competent in representing him, they have shown leadership and competence in helping every other defendant scheduled to go to trial in this case,” said Mehta, who was a defense attorney before taking the bench. “So the idea that these two gentlemen are not providing Mr. Rhodes with effective assistance of counsel — to which he is entitled — strikes me as complete and utter nonsense.”
“I Would Like to See That Case, Because It Would Give Me Far More Authority Than I Understand That I Have.”
Mehta then went through the motion’s alleged basis for requesting the trial continuance, dispatching each argument in no uncertain terms.
“I’m not aware of any right to an interlocutory appeal to an order denying a motion to dismiss a criminal indictment,” Mehta said of Rhodes’ argument that his lawyers had missed key deadlines to file — a claim that Bright had previously denied to Law&Crime. “I’m not aware of any [right to] interlocutory appeal for a defendant on a motion in limine. If you want to file an interlocutory appeal on behalf of Mr. Rhodes, go for it. I don’t know what the [U.S. Circuit Court for the District of Columbia] is going to do. I don’t think it will take very long to return it to me.”
Mehta appeared baffled by Rhodes’ demand for “electronic discovery of Rhodes’ codefendants who have pled out,” a reference to Oath Keepers members Joshua James, Brian Ulrich, and William Wilson, all of whom have pleaded guilty and are cooperating with the government.
“I don’t know why there’s any motion necessary, because Mr. Rhodes has those materials,” Mehta said.
Mehta was similarly confused as to Rhodes’ demand for “discovery regarding Ray Epps,” the figure at the center of the baseless conspiracy theory that an FBI plant riled up the pro-Trump crowd ahead of Jan. 6. In his motion, Rhodes argued that any “reasonable person could conclude that Mr. Epps, seen wearing Oathkeeper patches and other insignia, was speaking or acting on behalf of the Oathkeepers organization or Rhodes.”
Mehta’s rejection was unequivocal.
“As for the motion regarding somebody named Ray Epps, that name has not come up once,” Mehta said. “I have been the presiding judge over this case since January 2021 and I have not heard the name Ray Epps. Not once. If he was of such outsize importance to the defense, one would think the judge overseeing the case would have heard it.”
Rhodes also made a request to sever his case from his co-defendants. Mehta said that he is “bewildered as to what grounds” Rhodes felt he had to sever his case, but said that he is “free to file” such a motion.
In his motion, Rhodes also complained that his lawyers haven’t tried to compel the House committee investigating the Jan. 6 attack to provide documents. Mehta, who had previously rejected such a request, again scoffed at the idea that he had any authority to make such an order.
“If somebody can point me to the case that authorizes a federal district court to compel Congress — a coordinate branch of government — to turn over documents, I would like to see that case, because it would give me far more authority than I understand that I have,” the judge said.
As to Rhodes’ complaint that a video call was “unlawfully recorded” and therefore should be excluded from evidence, Mehta once again asked the defendant to provide legal authority as to what the judge could do about it.
“Maybe it was, and even if it was, somebody needs to tell me how a privately recorded call can be subject to suppression in a federal court,” Mehta said.
Rhodes’ motion sought “all discovery in the hands of federal prosecutors and agencies regarding the role that the pipe bombs planted and discovered played in decisions” to delay Congress’ certification of the Electoral College vote. Mehta was, again, baffled.
“I have no idea what that has to do with anything,” the judge said. “There’s no allegation that Oath Keepers were suspected of planting pipe bombs.”
Mehta was similarly shocked to see the name of one of the most memorable witnesses to testify before the Jan. 6 committee in the pleadings: Cassidy Hutchinson.
“I don’t know what she’s doing in these proceedings,” Mehta said. “I understand she may have made a statement as to what she heard, but she has no relevance to these proceedings. To the extent she overheard conversations between the president and his lawyer regarding the Oath Keepers, it’s not admissible at trial.”
“I’ve Given Seven Months of My Life to Mr. Rhodes.”
Mehta then gave Linder and Bright a chance to respond to Rhodes’ motion. Linder went first. He told Mehta that he and Bright had tried to call Rhodes at the jail but weren’t able to be connected. Linder said it was a “common issue” in trying to reach clients who are detained.
Linder then brought up the arrests of Michael Greene, a one-time “operations leader” for the Oath Keepers allegedly handpicked by Rhodes himself to help lead the group on Jan. 6, and Kellye SoRelle, the lawyer who had reportedly been acting as Oath Keepers president since Rhodes’ arrest.
Linder told Mehta that their arrests were “very surprising” to him, given that they have a “pretty open dialogue” with prosecutors.
“Two of the closest people to Rhodes were the attorney for the Oath Keepers — and his girlfriend at one point — and his vice president,” Linder said. “Both those people have recently been indicted this summer, after it was kind of known to everyone on both sides of the docket here that they were on our witness list.”
“It appears to be an attempt to silence them,” Linder later argued, adding that it was “troubling” that prosecutors had indicted Greene, who Linder described as an “Oath Keepers vice president who is African-American and very well spoken, and can address some of the claims that the Oath Keepers [group] is racist[.]”
“Of all the things in this motion to continue, that was the one that stuck with me,” Mehta said, the only time he acknowledged a potentially sound legal basis for Rhodes’ request. “Again, there has been no motion filed with regard to this issue … if that is a concern, then bring it up.”
Assistant U.S. Attorney Jeffrey Nestler said that prosecutors had provided the defense attorneys “many, many, many months ago” with the “complete FBI files for both of those individuals,” as well as information pulled from their cellphones.
“We told defense counsel that they had potential criminal exposure,” Nestler said, noting that the indictments don’t affect Rhodes’ ability to them as witnesses as trial.
Bright addressed Rhodes’ allegations that his lawyers stopped contacting him, telling Mehta that he and Linder had made repeated efforts to contact their client, but have been unable to due to restrictions imposed by the jail.
“I am a little confused … when he says we have not been answering my phones,” Bright noted. “That’s not accurate. I would be happy to proffer my phone to the court to show what calls I have and have not answered.”
“Mr. Bright, we have plenty of cell phone records in this case, we do not need yours,” Mehta cracked, bringing a moment of levity to the proceedings.
Bright then pivoted to one of the allegations in Rhodes’ motion, calling it an “outright lie” that the lawyers promised to depose someone described as a “key defense witness.”
He also dispatched with the notion that Epps would play any role in Rhodes’ defense.
“I have no intention of talking about Ray Epps in this case,” Bright said. “I am aware of who Ray Epps is alleged to be in the conspiratorial world that surrounds this day, this event. He is a red herring to anything in this case. This is a rabbit hole that as a defense attorney I have no intention of going down.”
Bright also said that he had no intention to file a motion to sever on Rhodes’ behalf, and that any suggestion that he has said otherwise is “another mischaracterization to the court.” He also acknowledged that Mehta has no authority to demand documents from the Jan. 6 committee, and that he has no intention to pursue a motion to compel.
Like Mehta, Bright was confused as to why Hutchinson was even mentioned in Rhodes’ motion.
“I haven’t heard why I would want to subpoena Cassidy Hutchinson,” Bright said. “In all of our discussions, including a weekend hosted here in Texas [for the defendants’ lawyers], that woman’s name has not been mentioned even once.”
Bright also vigorously opposed the idea of filing a motion for prosecutorial misconduct, as Rhodes’ filing suggested.
“There is no motion for dismissal from prosecutorial misconduct that I see,” Bright said. “In certain ways, I vehemently disagree with the government in terms of aspects of this prosecution. We had intended to fight them vigorously, but I will not in any way, on behalf of Mr. Rhodes, consider filing a frivolous motion, in my opinion, when it has to do with prosecutorial misconduct for the lawyers that we have been working with at the DOJ. I will not entertain it.”
“I do not think there has been prosecutorial misconduct,” Bright later said. “I do disagree with the underlying seditious conspiracy charge, but I would never entertain that [prosecutorial misconduct] motion.”
Bright then pondered whether the attorney-client relationship with Rhodes was irretrievably broken such that a substitution of counsel would be justified.
“[I]f Mr. Rhodes truly believes all of the things that he put into this motion, all the things we should file — some of which I believe are frivolous — then perhaps it is broken, Your Honor,” Bright told the judge.
“I’m straining right now not to tell the court that this isn’t a broken relationship based on some of the allegations,” Bright also said. “I have no ill will in any way for Mr. Rhodes. I truly wish him the best.”
Bright then offered insight into what the case has come to mean to him personally, and indicated that he would struggle to work with Tarpley if he were to join the case.
“I’ve given seven months of my life to Mr. Rhodes,” Bright said. “I’ve missed sporting events with my children, I’ve missed time with my family, for a man they don’t know. I was prepared to come to D.C. for six weeks and be away from my young children. But I’m having a hard time [figuring out] to how maintain a collegial relationship with another lawyer based on these allegations.”
“Mr. Linder and Mr. Bright Are Going To Be at That Table Representing Mr. Rhodes in This Trial on Sept. 27. Period. Full Stop. End of Story.”
In a relatively brief back-and-forth with Tarpley, Mehta did not hide his skepticism that “at the 11th hour, Mr. Rhodes wants to bring in new counsel, three weeks before trial is set to begin” after months of preparation — including, the judge said, plans to start bringing potential jurors to the courtroom for preliminary questioning as early as next week.
“We have made arrangement to bring 150 jurors in next Tuesday to start filling out questionnaires,” Mehta said. “They are subpoenaed. They are called to be here. They will be called here on Sept. 27 for jury selection in this case.”
“You are suggesting — three weeks before trial — that these two gentlemen [Linder and Bright] are so ill-prepared that I need to remove Mr. Rhodes from the trial calendar, disrupt the government’s [case] … [and disregard] the public’s interest in the case,” Mehta continued. “With all those factors, you think I should bump Mr. Rhodes’ [trial]?”
“Yes, I think you should,” Tarpley replied.
“I’m not going to do it,” Mehta responded.
“Mr. Linder and Mr. Bright are going to be at that table representing Mr. Rhodes in this trial on Sept. 27,” Mehta added. “Period. Full Stop. End of Story.”
Mehta said that Tarpley could join the case if Rhodes wanted, but granting the motion would create “havoc” and that, under his watch, it was “not going to happen.”
Bright pledged that he and Linder would do their “damnedest” to present an effective defense, but he then added a request of his own.
“I do not want Mr. Tarpley sitting at this table with me,” Bright said.
“Let me tell you how all this went down,” he continued, but Mehta cut him off.
“I want to be careful about this and putting all this on the public record, so let’s just put a pause on that,” Mehta said.
“I would ask the court to deny the motion to substitute counsel,” Bright added.
Mehta then turned to Rhodes, who was appearing via video from federal custody. Rhodes told the judge that Tarpley and his paralegals appear to have had “absolutely no problems” reaching him. As to his desire to appeal some of Mehta’s rulings, Rhodes said that Linder and Bright said that they would put him in touch with an appellate lawyer, but according to Rhodes, that never happened.
In an apparent response to Bright’s request that Tarpley not be at the defense table, Rhodes said that he didn’t want Bright there at all.
“I don’t want him at the table,” Rhodes said. “I want Mr. Linder, and not Mr. Bright. He can leave.”
Later in the hearing, Bright softened his tone toward Rhodes somewhat, apologizing to his client and implying that there might have been a miscommunication.
“I wanted to apologize for my characterization,” Bright said. “I was out of line for that, that was a mischaracterization. I should not have used that word, I perhaps should have phrased it as a pretty dramatic misunderstanding, and for that, Mr. Rhodes, I apologize.”
In going through his reasons for not delaying Rhodes’ trial, Mehta said he considered many factors, including the extensive preparation that has already been completed, and the fact that his trial docket is so full that he wouldn’t be able to hear Rhodes’ case until summer of 2023.
He also said that the complaints about miscommunication may have simply come too late, although he was not entirely unsympathetic toward the defendant.
“Mr. Rhodes is in a tough situation,” Mehta said. “He was detained; that was my decision. His counsel is in Texas; that was his decision. I have not have a whiff of dissension or conflict … until yesterday. The idea that all of a sudden, three weeks before trial, there is a breakdown of communication and disrepair of the attorney-client relationship is just on consistent with this record, and, frankly, just not consistent with what I’ve just been told.”
Mehta said that it appears that Rhodes’ relationship with Linder is still functional, and that as to Bright, he’s “not sure” that the damage is irreparable.
As to the one issue Mehta indicated may be worth considering — the impact of the indictments of SoRelle and Greene — the judge told the defense lawyers to “put it in writing.”
“It’s been at least two weeks and I’ve not received a speck of paper from anyone suggesting that [Sorrell’s] being charged is going to impact Mr. Rhodes’ defense materially until it was raised in this motion yesterday.”
In the end, Mehta did not waver from his decision, and denied the motion.
“I’m not going to grant the motion for a continuance,” Mehta said. “I’m not going to grant the motion to remove Mr. Linder and Mr. Bright in this case.”
Mehta added, however, that Tarpley was welcome to participate, if an agreeable arrangement could be made.
“If Mr. Tarpley wants to join this defense team, and it is amenable to Mr. Rhodes and his two defense counsel and they can work it out, we’ll make room at the table for you, Mr. Tarpley,” the judge said.
[Image of Rhodes via Collin County (Tex.) Jail. Image of Mehta via U.S. District Court for the District of Columbia.]