People wearing clothing with “Oath Keepers” labels are seen outside the Capitol on Jan. 6. (via YouTube screengrab/PBS NewsHour)
The federal judge overseeing the case against members of the right-wing Oath Keepers militia group told lawyers for the 10 defendants that they are running out of reasons to ask for a delay in trial.
During a status conference Friday in the case of Stewart Rhodes, Kelly Meggs, Kenneth Harrelson, Jessica Watkins, Roberto A. Minuta, Joseph Hackett, David Moerschel, Brian Ulrich, Thomas Edward Caldwell, and Edward Vallejo, attorneys for the defendants once again asked U.S. District Judge Amit Mehta to consider delaying the first trial date, currently set for July.
The second trial date is set for September.
Rhodes, the founder and leader of the Oath Keepers, was indicted in January on seditious conspiracy charges, the most serious charges yet in the government’s expansive prosecution of Donald Trump supporters who overran police and breached the Capitol on Jan. 6, temporarily stopping Congress from certifying Joe Biden’s win in the 2020 presidential election.
Rhodes and several of his co-defendants have been held in detention since their arrests; he was recently moved from a detention center in Oklahoma to a local jail in Virginia.
“The Evidence That Matters Is the Evidence You’ve Already Got.”
At the start of the hearing, Assistant U.S. Attorney Kathryn Rakoczy brought Mehta up to speed on the status of discovery, which—considering the more than 700 Jan. 6 arrests made so far, and considering DOJ’s apparent interest in pursuing up even more—is voluminous.
Rakoczy estimated that the size of the data that prosecutors have deemed relevant totals up to around 180 gigabytes. That includes around 15 or 16 messages from the chat app Signal that the government has categorized as “significant planning or coordination” chats, Rakoczy said, noting that the spreadsheet of chats has around 45,000 rows of messages.
Rakoczy also said that the FBI was still reviewing two of Rhodes’ devices seized when he was arrested: an iPhone and a laptop.
Phillip Linder, an attorney for Rhodes, was among the most vocal in pushing to delay the trial date, even though his client is currently slated for the second trial date in September, and not the first date in July.
Linder, who joined the case in January when Rhodes was indicted, said that there was so much evidence and discovery to review his law firm had hired an associate dedicated to do just that. He told Mehta that even if the government had determined that not all the evidence was “relevant” to this case, he still needed to review all of it.
“I can’t in good faith go to trial if I haven’t looked at it,” he said.
Judge Mehta, who had previously noted that Linder joined the case later than the other attorneys, said that he could relate.
“Before taking the bench, I spent my career what you all are doing right now,” the judge said, noting that there “wasn’t a day in [his] professional life” where he prosecuted anyone. “All I did was defend people.”
Mehta, a Barack Obama appointee, said he understands the attorneys’ position, and the “mountain” of evidence in the case, “perhaps more than most judges do.”
The judge said, however, that much of the evidence wasn’t likely to be relevant to the case, given the nature of the accusations against Rhodes and the other defendants—specifically, that they were charged with crimes related to their intent to commit seditious conspiracy or interfere with the certification of the election results.
“I would guess a lot of it is not at all relevant to a single one of these defendants,” Mehta said. “I cannot imagine a video of something that happened on the other side of the Capitol building hours after [the breach] has anything to do with” the defendants’ case.
“I cannot fathom how that will be relevant,” he added. “Given this case is about the state of mind of those people, looking at those videos won’t reveal their state of mind. The videos will speak for themselves.”
Mehta said that the crucial evidence will be the chats between the defendants, interviews they gave, and social media posts.
“It’s going to matter what they said to one another, what people overheard, and what the jury concludes their intent was,” Mehta added. “That’s what this case is about.”
William Shipley, an attorney for Minuta, said criticized Rakoczy’s characterization that the government was still in the process of acquiring, organizing, and turning evidence over to the defense, implying that that was the bare minimum of compliance with the federal rules of criminal procedure.
“This is the kind of stuff you get when you indict the case, not 15 months later,” Shipley said. “We’re not at the end of the discovery process. I don’t know how we prepare for trial when more is on the way.”
Mehta disagreed, saying that in fact, prosecutors have more than met their obligation under federal law.
“The government has made decision to push off every piece of paper” to the defendants in the case, Mehta said. “This is well beyond scope of their Rule 16 obligation. All they need to do is make available information to the defense.”
“The evidence that matters is the evidence you’ve already got,” Mehta said.
“I Can’t Even Try to Defend Myself At This Point.”
Toward the end of the hearing, Mehta addressed the matter of Meggs’ attorney Jonathon Moseley, who recently had his law license revoked in the state of Virginia.
Mehta told Meggs that under the rules governing the D.C. federal district court, Moseley would likely be suspended from practicing there and he would no longer be allowed to represent Meggs.
“Under the rules of this court, when a lawyer is disciplined in the manner your counsel has been, [the court] is required to issue an order of temporary suspension,” Mehta said, telling Meggs that he could either hire his own attorney, have a court-appointed federal public defender, or represent himself.
Meggs told Mehta that since he was still in pretrial detention, he wasn’t able to reach out to attorneys.
“Even if I said I want to hire someone today, I can’t call them,” Meggs said. “I can’t even try to defend myself at this point.”
Mehta told Meggs that he would try to facilitate his ability to talk with other attorneys to see if he wanted to hire them, and scheduled a status conference to take place in two weeks.
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