Judge mulls release for militia leader facing sedition charges in Jan. 6 attack

PLANO, Texas — A federal magistrate judge sounded open Monday to releasing the citizen militia leader prosecutors say masterminded a conspiracy to take over the Capitol on Jan. 6, 2021, with the intention of keeping then-President Donald Trump in power.

During a bail hearing here for Oath Keepers founder Stewart Rhodes, Assistant U.S. Attorney Kathryn Rakoczy said the seditious conspiracy Rhodes is accused of threatened the U.S. political system by seeking to block the peaceful transfer of presidential power.

“It is difficult to imagine a graver risk to the society that we live in,” Rakoczy said as Rhodes looked on in a black-and-gray striped jail jumpsuit with his hands cuffed in front of him.

“Mr. Rhodes coordinated, offered to fund and facilitated the attack on the Capitol,” she said.

The conspiracy alleged against Rhodes and ten other Oath Keepers is the most complex and momentous case yet against the more than 725 people charged so far in connection with the Jan. 6 insurrection. Prosecutors have also arrested more than two dozen members of the right-wing extremist Proud Boys, alleging they conspired to obstruct the transfer of power. Several leaders of both groups have been held in jail pending trial.

However, defense attorneys argued that by waiting a year to charge and arrest Rhodes, prosecutors and investigators undercut their claims that the public would face “immense” danger if he remained free pending trial.

“Saying he’s a danger now is disingenuous...Why did they wait?” defense lawyer Phillip Linder asked during the hour-and-45-minute hearing. “To me, that speaks volumes.”

U.S. Magistrate Judge Kimberly Priest Johnson issued no immediate ruling, but engaged in an extended discussion with defense attorneys about potential custodians who could supervise Rhodes if he is released. She also said she didn’t see much to prosecutors’ argument that he poses a risk of not appearing for trial.

“In the last year, there doesn’t seem to be any evidence—at least that was presented here today—to support that he’s a continued danger of a flight risk,” Johnson said.

Defense attorneys told reporters after the court hearing that it was almost comical to think that Rhodes, who wears an eye patch on his left eye due to a gun accident three decades ago, could slip away.

“You’ve seen what the guy looks like?” lawyer James Lee Bright said.

Whatever Johnson decides regarding Rhodes’ pretrial detention is almost certain not to be the final word on the issue. Both sides have said they will appeal if she loses.

Linder said during his presentation that Rhodes’ Jan. 13 arrest at a friend’s home in Little Elm, Texas, scuttled plans for the Oath Keepers leader to testify to the House committee probing the Capitol riot and President Donald Trump’s efforts to cling to power.

“He was actively cooperating,” Linder said. “They thwarted that. There are people in D.C. who are not very happy with this indictment.”

Rakoczy also asked Johnson to grant a stay of any release order she might issue. Such a stay, which the magistrate said she would grant, would keep Rhodes behind bars while prosecutors to appeal to the Washington-based judge assigned to his case, U.S. District Judge Amit Mehta.

During the court session Monday, lawyers for each side presented starkly different views of Rhodes.

Rakoczy said he amassed a large stockpile of weapons for the “civil war” he repeatedly discussed in encrypted chats with other Oath Keepers’ leaders and members. She said he oversaw the staging of those weapons in Virginia prior to the Jan. 6 events and was in tactical command of many of those people that day as they rushed into the Capitol in two lines or “stacks.”

However, Linder said the Oath Keepers had a legitimate purpose: to provide security for speakers at conservative political rallies including a Stop the Steal event and a Latinos for Trump rally scheduled for that day. Rhodes’ lawyers described him as law-abiding and stressed that he’d been open and responsive with law enforcement before and after Jan. 6.

The defense was less clear about the purpose of Rhodes organizing stashes of weapons in Virginia on the day the Capitol was breached. Rhodes lawyers’ stressed, though, that keeping the weapons outside D.C. indicated the Oath Keepers’ commitment to abide by the law including D.C.’s strict gun laws.

Linder also noted that Rhodes never gave any order to bring any of the weapons into D.C., despite at least one Oath Keeper repeatedly seeking such permission.

One of the FBI agents involved in the mammoth Jan. 6 investigation, Michael Palian, took the witness stand for the prosecution to describe the encrypted chats Rhodes engaged in before and on Jan. 6, some of which seemed to urge or predict guerilla warfare on American streets after the 2020 election.

Some of the chats were displayed on large screens in the courtroom, as were photos of Oath Keepers entering the Capitol and a photo Palian said depicted Rhodes meeting with Oath Keepers outside the building. The agent said that on Jan. 6 Rhodes used the encrypted messages to direct his fellow militia members.

“The defendant was telling the co-conspirators where they needed to go to. At one point, it was the south side of the Capitol,” the FBI agent said.

Palian also said Rhodes purchased tens of thousands of dollars worth of weapons and related equipment in the weeks before and after Jan. 6.

Palian said Rhodes’ violent rhetoric continued after Jan. 6, but during cross-examination Linder pressed Palian on whether there was any evidence of him actually doing anything illegal over the past year aside from the activities directly related to the Capitol riot over a year ago. The FBI agent was cagey, but he said he had nothing more recent to present.

“That’s the only conduct we’ve put out today,” Palian said.

Under questioning from Linder, the FBI agent acknowledged that Rhodes was cooperative when agents visited with him in May to seize his phone with a search warrant. He turned it over to them without resistance and even gave them his passcode, which he was not legally required to do, Rhodes’ defense said.

Linder also asked directly why Rhodes wasn’t arrested a year or so ago, when the FBI began taking various Oath Keepers into custody. The number eventually climbed to about 20, but Rhodes remained free.

“We were aware of him, but we were just beginning our investigation. At that point, we didn’t have all of” the information we have now, the agent said.

Rhodes seemed to be in good spirits during the court session. The disbarred Yale Law School graduate also regularly whispered with his lawyers.

At one point he traded glances with his sister, who was sitting in the courtroom’s small, but packed gallery. He pointed at her and flashed her a thumbs-up.

While Johnson sounded open to releasing Rhodes, she expressed dissatisfaction with the defense's proposal to have him live with a Dallas political consultant, Brian Bodine. Bodine, who took the witness stand briefly, said he works nights as a rideshare driver and met Rhodes at an anti-Covid lockdown protest at a beauty salon in March or April of 2020. He said he had no ties to the Oath Keepers or the Jan. 6 events.

The defense then proposed to have Rhodes live with relatives in California, including a cousin, aunt and uncle. The cousin's husband, who was identified in court only as Benjamin, also said he had no connection to the Oath Keepers or the Capitol riot. "We're boring," he told the judge.

After the court session, prosecutors declined to comment. But Rhodes’ attorneys said they considered the hearing a victory because prosecutors didn’t present anything to show Rhodes had been up to anything illegal over the past year.

“We thought it was a home run,” Linder said.

Various indictments filed and refiled over the past 12 months referred to Rhodes as “Person One” but did not name him directly and did not charge him.

They identified Rhodes early on as a key driver of calls for violence in the run-up to Jan. 6 unless Trump remained in office, and he publicly called on Trump to invoke the Insurrection Act and deputize the Oath Keepers to violently impede the transfer of power — a call many of them referenced in private messages obtained by prosecutors over the last year. When it became clear Trump had declined to do so, Rhodes expressed frustration.

Rhodes defense attorneys said they weren’t sure why prosecutors decided to charge their client more than a year after the Jan. 6 events, but they said they suspected politics were at work. Linder also said he sees the effort as an attempt to silence Rhodes.

“I think he is the poster boy of this movement,” the defense lawyer said. “I think they’re trying to shut him down.”

Rhodes’ lawyers also insisted that, whatever the outcome of the detention hearing, he wants a trial. They ruled out a plea deal.

“Ultimately, we are going to go to trial on this in Washington,” Bright told reporters outside the courthouse. “No question about it.”