Members of the Oath Keepers facing seditious conspiracy charges in connection with the Jan. 6 attack on the U.S. Capitol have lost their latest bid to delay the trial.
“I’m not going to move this trial,” U.S. District Judge Amit Mehta said at the end of an hours-long status conference on Tuesday. Oath Keepers leader Stewart Rhodes, along with members and co-defendants Kelly Meggs, Kenneth Harrelson, Jessica Watkins, and Thomas Caldwell had asked to move the trial from its current Sept. 26 start date to at least January of 2023.
Mehta had previously resisted efforts to delay the trial, although he did agree — somewhat reluctantly — in May to move the Rhodes trial from July to September. At that time, most of the lawyers agreed that they would not ask for another continuance except under extraordinary circumstances.
Rhodes and his co-defendants are accused of gathering a stockpile of weapons and readying a so-called “Quick Reaction Force” prepared to ferry them across the Potomac in support of rioters at the Capitol angry over Donald Trump‘s 2020 election loss to Joe Biden. Some of them are believed to have breached the building after using a military-style “stack formation” tactic to force their way through the riotous crowd.
“This Case is Not a Normal Case.”
At Tuesday’s hearing, lawyers for defendants told Mehta that they simply would not be able to prepare for a trial to start in September.
“This case should have been designated complex,” Phillip Linder, who represents Rhodes, told Mehta. “I don’t know why it wasn’t.”
Linder, who referred to himself as “probably the oldest lawyer in this courtroom,” acknowledged that he had told Mehta when he joined the case following Rhodes’ January arrest that he would be ready for trial, but several factors have interfered with his preparation.
Linder said that the fact that Rhodes, who is currently being held in a federal detention center in Alexandria, Virginia, can only access a laptop to review evidence for two hours a week is a hindrance. Mehta responded that he wasn’t aware of any rule that “entitles a defendant to direct access to discovery as opposed to through their lawyers,” and that the fact that Rhodes has such access at all is “highly unusual.”
Linder then took a different approach, saying that if Rhodes was moved into the same detention facility as his co-defendants, he may have an easier time accessing discovery.
“I don’t make designations about where people are [detained],” Mehta replied.
“I appreciate the court wanting to be fair, and treat all defendants the same,” Linder said. “However, this case is not a normal case … it’s the largest [criminal prosecution] in history.”
“I’ve got Google next fall,” Mehta cracked, referring to the DOJ’s antitrust case against the tech giant.
“This needs to be handled differently, and we need to make exceptions,” Linder said, continuing to push his point. “I say this with all due respect: the court’s failure, or inability, or lack of desire to treat [Rhodes] different [sic] has actually caused my client harm, because he doesn’t have access [to discovery].”
“I’ve actually tried to accommodate Mr. Rhodes,” Mehta replied, saying that there were defendants before him who didn’t have any access to discovery whatsoever, other than through their lawyers.
Apparently wanting for an end to the back-and-forth, Mehta asked Linder directly when he would set the case for trial.
“Cut to the chase,” Mehta said. “If you had your druthers, when would you try this case?”
“I would try this in January,” Linder replied, saying that he wouldn’t want to start trial during the holidays.
Mehta pointed out that January 2023 will mark two years since the Jan. 6 attack, and noted that if he moved the Rhodes case to January, several other cases will have to be bumped in order to accommodate the trial.
Linder said that if the September trial results in convictions, the defendants would likely appeal based on ineffective assistance of counsel.
“They’re going to do that anyway,” Mehta replied, noting that many appeals are based on that argument.
“This Is Not a Forum to Express Your Political Views.”
Attorney David Fischer, speaking on behalf of Watkins, named another reason for delaying trial: the hearings before the House committee investigating the Jan. 6 event, which defense lawyers have argued will prejudice any jury pool drawn from people who live in Washington.
“It’s not our client’s fault that one branch of the federal government has decided, nearly 18 months after Jan. 6, to launch a very highly publicized, obviously public spectacle regarding Jan. 6,” said Fischer, who was filling in for Watkins’ attorney Jonathan Crisp. “I know the court has no control over what Congress does. Congress, by definition, is made up of politicians, and politicians are going to do what politicians are going to do. I don’t think any fair-minded person watching what they classify as hearings would consider these as hearings,” Fischer said.
“The main point we have to consider is that you have a congressional committee that goes out and paints the Oath Keepers as white supremacists,” Fischer also said, adding that even the “fairest-minded jury in the world” would be prejudiced if they had heard such a statement.
“That presumes … a whole lot of things,” Mehta said. “That’s what voir dire is about.”
Mehta also said that there was some “irony” to the fact that the attorneys who are now insisting they could not be ready for trial by September had previously pushed to have the trial moved to a different jurisdiction.
“By the way, if you were in the Eastern District of Virginia, this case would have been tried by now,” Mehta said. “The idea that you’re asking me to move this case when we could have tried it multiple times — there’s some irony in that.”
Putting an end to his back and forth with Fischer, Mehta said that he couldn’t delay trial based on the House Jan. 6 committee.
“This is a court of law,” he said. “We cannot wait on the legislative process to unfold.”
Attorney Juli Haller, who represents Meggs (and who is also facing possible sanctions for participating in the so-called “Kraken” litigation that sought to overturn the results of the 2020 presidential election), also tried to convince Mehta that the Jan. 6 hearings in September unfairly prejudice the defendants.
“The Jan. 6 committee has made clear that they are proceeding in September,” Haller said. “They will make a report and have more hearings.”
“Do we know the subject [of the hearings]?” Mehta asked.
“The Oath Keepers,” Haller replied.
“How do you know something they haven’t announced publicly?” Mehta asked, sounding surprised at Haller’s apparent insider knowledge.
“They’ve announced it,” Haller said, adding that the upcoming hearings would not be only about the Oath Keepers.
“Can you tell me what the source is for that information?” Mehta asked. Halim referred the judge to her recent filing in support of a motion to dismiss, citing a CNN report that the committee’s so-called “Purple Team” is “digging into domestic violence and extremist groups, including the Proud Boys, [Three] Percenters and Oath Keepers.”
Mehta quickly dispatched with that line of argument.
“This is not a forum to express your political views or your views about the motivations of the committee,” Mehta said. “I don’t think they’re hosting the hearings just to interrupt this trial. Is that what you’re going to suggest?”
“That is not what I’m suggesting,” Haller replied. “Politico and the New York Times have reported that there are other reasons for these hearings.”
Mehta, sounding exasperated, put an end to Haller’s argument.
“I’m not granting a motion based upon your views of the motivations of members of Congress,” Mehta said.
“What I Do Have An Ability To Do Is Guarantee These Defendants Receive a Fair Trial.”
Mehta said that he understands the defendants’ position, but that other factors weigh more heavily in favor of moving forward in September.
“I understand the concerns that the defense has, I really do,” Mehta said. “That said, I can’t move this trial. I’m not going to move this trial.”
“It would quite literally wreak havoc for this court’s docket, and that’s not the [only] reason not to continue a trial, but it is a reason,” the judge added.
Mehta said that it’s “impossible to know” the effect of those aspects of the House committee hearings may have on potential jurors, particularly the July testimony of former Oath Keepers member Jason Van Tatenhove.
“I don’t know, you all don’t know, the government doesn’t know, how the members of this community will be impacted by that portion of the hearing,” Mehta said. “That portion of the hearing was part of a much larger hearing [that] focused largely on the conduct of the president of the United States.”
Mehta said that public interest in — and media coverage of — high-profile Jan. 6 trials such as this one will not abate.
“Whether this trial is held in September, November, December, [or] January, the news media is going to continue to cover the events of Jan. 6, before the September hearings or after the September hearings,” Mehta said.”We’re not going to avoid that publicity by virtue of moving this trial for a few months.”
The judge did say that if something happened at the last moment that could affect the trial, he would reconsider rescheduling.
“If there were transcripts dropped on the eve of trial that affect these defendants … I will revisit the issue,” Mehta said. “You have my word.”
Mehta said that as a judge, he cannot base his trial schedule on the actions of Congress.
“The truth of the matter is the court’s docket cannot be dictated by how Congress is acting, and what they are doing,” Mehta said. “They have an independent obligation to do what they’re doing.” Courts, however, are a separate branch, and judges “have no ability to influence what they do and how they do it.”
“What I do have an ability to do is guarantee these defendants receive a fair trial,” Mehta continued, saying that he could do so by engaging in “the most rigorous voir dire” possible.”
“I have three defendants who have been locked up for over a year, at least,” Mehta said, noting that Watkins has been detained since February of 2021, with Meggs and Harrelson following soon thereafter.
“While they’ve waived their right to a speedy trial, I have an obligation to ensure a fair and a speedy trial,” Mehta said. “They have been locked up for a very, very long time … they’re entitled to a speedy trial and, in my view, they’re going to get it in September.”
Mehta also cited the interest of the American public in having the case move forward.
“At least two trial dates have come and gone, maybe three,” Mehta said. “I’ve lost track. At some point, folks, we have to have a trial and see where the chips fall. If the government can’t meet its burden of proof, we’ll know [sooner than later].”
Rhodes, Meggs, Harrelson, Watkins, and Caldwell make up the first group of Oath Keeper members that will face a jury trial. The trial of co-defendants Roberto Minuta, Joseph Hackett, David Moerschel, and Edward Vallejo is set to start in February of 2023.
[Image of Stewart Rhodes via Collins County (Tex.) Jail; image of Amit Mehta via U.S. District Court for the District of Columbia.]
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