WASHINGTON — A federal judge on Wednesday expressed skepticism about releasing the founder of the right-wing Oath Keepers organization ahead of his trial on seditious conspiracy charges in connection with the Jan. 6 riot, as prosecutors revealed new evidence about the plot and how it extended beyond the U.S. Capitol attack.
Elmer Stewart Rhodes III was arrested in January, charged along with several other Oath Keepers in a seditious conspiracy case that alleges they "planned to stop the lawful transfer of presidential power" and keep former President Donald Trump in office.
The feds said that Rhodes — who was on the grounds of the Capitol on Jan. 6 — had helped organize “quick reaction forces“ (QRFs), including at a hotel in nearby Virginia.
A federal magistrate judge in Texas ordered Rhodes held until trial last month, and his attorneys appealed. Since his first detention hearing, Rhodes testified before the House committee investigating the Jan. 6 attack.
Federal authorities argued before Judge Amit P. Mehta on Wednesday that there were no conditions of release that would reasonably assure the safety of the community and Rhodes’ future court appearances.
Assistant U.S. Attorney Kathryn Rakoczy revealed that Rhodes wrote in a group chat with other co-conspirators that Jan. 6 could be "final nail" in the coffin of the United States.
Trump "must know that if he fails to act, we will. He has to understand that we will have no choice," Rhodes wrote, according to the government. "With Trump (preferably) or without him, we have no choice."
Rakoczy argued that the plot to oppose the transfer of power to President Joe Biden went beyond Jan. 6.
Rhodes, according to Rakoczy, wrote on Jan. 12 that he did not believe that Trump would invoke the Insurrection Act of 1807 and call up the military, as former President George H.W. Bush did during the 1992 L.A. riots.
"I hope I am wrong, I pray I am wrong," Rhodes wrote, but Oath Keepers should prepare to "walk the founders' path," the government alleged.
Mehta asked Rhodes' lawyer James Bright why there was a need for "QRFs" at all, and Bright said they believed that they would be able to use the weapons on Trump's authority to combat groups like Antifa or Black Lives Matter.
“There was no conspiracy to overthrow the government,” Bright said, although conceding there was some “bombastic language involved.”
Prosecutors have argued otherwise. "Rhodes spearheaded a conspiracy to oppose by force the execution of the laws governing the transfer of presidential power in the United States," prosecutors wrote. "Rhodes stood at the center of the seditious conspiracy — orchestrating plans to use force, recruiting and financing co-conspirators, purchasing weaponry and tactical gear, inciting support and action, and endeavoring to conceal his and other coconspirators’ crimes."
Rhodes' attorneys argued in their court filings that the the QRFs were "not an offensive force" and that the government had "misled" the court "by painting the QRF as an offensive force whose purpose was to prevent the Presidential certification by Congress through armed action," and that the QRFs were only on standby in case Trump invoked the Insurrection Act.
"When he believed that the President would issue an order invoking the Insurrection Action, he was prepared to follow it. When that invocation did not come, he did precisely nothing," his attorneys wrote.
Mehta questioned Wednesday whether a private militia could be called upon by the president to take action, given that they weren't a state militia.
The judge did not reach a decision on Rhodes’ pretrial release, but wanted proposed third-party custodians to be interviewed by pretrial services in D.C. to determine whether their home in California would be a suitable place for Rhodes to stay if he were to be released until his trial.
The FBI has made more than 725 arrests in connection with the Jan. 6 attack, with new cases being unsealed as recently as Wednesday. The total number of people who could be arrested in connection with the Jan. 6 attack because they either unlawfully entered the U.S. Capitol or fought police officers outside the Capitol building is more than 2,500.