The legal team of Stewart Rhodes, founder of the right-wing Oath Keepers militia, has presented a startling defense seeking his release as he awaits trial on charges he organized a “seditious conspiracy” to forcefully block the peaceful transfer of presidential power.
In a new court filing, Rhodes’ lawyers do not contest core facts at the center of the government’s case — specifically that Rhodes rallied his militia to Washington, D.C., and stockpiled arms across the river in Virginia in anticipation of a potentially bloody battle. But the memo claims Rhodes was merely prepared to answer a call-to-arms from former President Trump that never materialized, and patriotically stood down. The filing describes Rhodes’ actions on Jan. 6 as “not criminal, not extreme and not serious” while insisting “there is no compelling or legal reason” to detain him.
The memo argues, instead, that the government is acting in bad faith, turning Rhodes into a “boogeyman” and using the Oath Keepers as “the perfect scapegoat for the events of January 6, 2021.”
Rhodes was arrested last month, more than a year after the siege of the Capitol, on charges that he was the ringleader of an armed plot to prevent Joe Biden from becoming president. The federal indictment and subsequent filings by prosecutors allege that Rhodes “spearheaded” the conspiracy, and was prepared to lead a campaign of violence to keep Trump in the White House.
The government contends that Rhodes helped build up large caches of weapons in nearby Arlington, Virginia, that could have been brought into Washington, D.C., by “Quick Reaction Forces” at his command. Rhodes then allegedly directed the Oath Keepers who infiltrated the Capitol during the insurrection, and scoffed when he learned of the danger faced by Congress members inside with a text reading, “fuck ‘em.” Rhodes graduated from Yale Law School and was an Army paratrooper, and federal lawyers have argued he “used his legal and military training to lead an attack on our core democratic traditions.”
In late January, a federal judge in Texas ruled that Rhodes should be locked up until trial, arguing that his “ability to finance any future insurrection, combined with his continued advocacy for violence against the federal government, gives rise to a credible threat that [his] release might endanger others.” Underscoring Rhodes’ risk of flight, the judge cited testimony by Rhodes’ estranged wife describing how the militia leader had previously “installed elaborate escape tunnels in the couple’s backyard” and “hid unregistered cars in the woods.” (The estranged wife also testified she feared for her family’s safety if Rhodes were released.)
On Wednesday, Rhodes will get a chance to challenge his detention in a court hearing in Washington, D.C. The new legal memo, filed in advance of that hearing, offers not only a detailed case for why Rhodes believes he should not be locked up, but previews his broader defense against the conspiracy charges he faces.
Here’s a breakdown of what Rhodes’ lawyers are arguing:
“Amicable relations” with federal authorities
In perhaps the strongest argument in the memo, Rhodes’ legal team claims that the government was able to keep tabs on the militia founder for more than a year before it captured Rhodes. The memo insists it is “disingenuous” for the feds to have “waited thirteen months to arrest him, and only then to claim that he is the greatest of risks to our nation and society.”
The memo characterizes Rhodes as cooperating with law enforcement, noting that he “voluntarily met with members of the Federal Bureau of Investigation on multiple occasions and voluntarily surrendered his phone along with the required access codes.” It adds, suggestively, without elaboration: “There is also substantial evidence … regarding prior dealings and amicable relations that Rhodes had with federal authorities.”
America’s “most recognizable”
Rhodes’ lawyers insist their client “has no passport,” is on a government do-not-fly list, and has become publicly notorious. “To suggest he would flee at this point strains rational thought,” the lawyers argue, adding of Rhodes: “He is currently one of the most recognizable individuals in America and would be fundamentally impossible to go unnoticed in society.”
“No legal duty” to preserve evidence
The federal indictment of Rhodes alleges he sought to destroy evidence by deleting incriminating text messages, and argues he needs to stay locked up to prevent additional tampering with witnesses or evidence.
Rhodes’ lawyers say their client had previously received legal advice that he “was under no legal duty to preserve the ‘evidence’ they are referencing … as he had not been charged with an offense that would trigger the preservation of that information.”
“Providing defensive assistance”
The memo claims that a primary reason for the Oath Keepers’ presence on Jan. 6 was “providing defensive assistance to attendees” that was “necessitated by the aggressive and assaultive nature of violent left-wing groups such as Antifa.” The memo says that the Oath Keepers specifically provided security for “Latinos for Trump, Roger Stone and others.”
“Hardly” a “commando force”
Rhodes’ lawyers also assert that the purpose of the Oath Keepers’ Quick Reaction Forces has been misconstrued as “an offensive force meant to come into D.C., guns blazing, and take over the Federal Government.” The memo insists “the QRF is not an offensive force” as the government has contended, rather “a defensive force.” (The memo also reveals that the Oath Keepers had put armed Quick Reaction Forces on standby during earlier events, “in the exact same manner as they were on January 6, 2021.”)
Rhodes’ lawyers add that one of the QRFs in place on the day of the insurrection was overseen “by co-Defendant, Edward Vallejo, a man in his late 60s, who was overweight and had a myriad of health issues from a heart condition to back and hip issues, hardly the commando force the Government is attempting to portray it as.”
“Practically obligatory” weapons purchases
The federal indictment highlighted how Rhodes spent tens of thousands of dollars on firearms and tactical equipment in the buildup to, and aftermath of, Jan. 6. Rhodes’ lawyers insist that highlighting Rhodes’ purchases is “nothing more than a scare tactic.” The lawyers allege the government has “not shown that those weapons have been used for any illegal activity,” adding that “while someone in New York City might find it odd for a person to spend thousands of dollars on firearms, in the State of Texas it is practically obligatory.”
“No evidence” Rhodes ordered the Capitol incursion
The memo argues that Rhodes “did not” command his militia members to enter the Capitol as it was overrun. “Several members did enter the Capitol building” in military formations known as “stacks,” it acknowledges, but the memo insists “those ‘stacks’ entered the Capitol on their own accord” and allegedly only wanted to help, after “receiving word that Ashli Babbitt had been shot, others were injured and there was a need for medical assistance within the building.”
Waiting for an order that never came
Central to Rhodes’ prospective defense, his lawyers write, is that he believed that “President Donald Trump would invoke the Insurrection Act, necessitating a need for militias and other groups to defend that declaration.”
This is a peculiar casting of the notion of defense. The Insurrection Act allows for the president to call up militias to “suppress” a rebellion. And Rhodes, in his own words, later cited by his own attorneys, imagined conducting “a bloody, massively bloody revolution against” the enemies identified by Trump.
Regardless, Rhodes’ lawyers insist that, while the militia leader was prepared to follow an order by Trump, “when that invocation did not come, he did precisely nothing.” The lawyers add: “The Government would like this Court to believe that is sedition, when in fact, it is the opposite. It is loyalty to an oath taken in defense of the Country.” The memo proposes that this is “substantial proof that the Government’s accusations against Rhodes are simply false.”
“Ample opportunity” to “overthrow the government”
In one of the memo’s stranger twists, Rhodes’ lawyers play up how easy it would have been for the militia leader to carry out an attack on the federal government, only to argue that, by not taking that action, Rhodes proved himself harmless.
“The Government’s entire theory lies in the idea that the Oath Keepers, at Rhodes’ behest, conspired to overthrow the Government,” it reads. ”If that was the Oath Keepers intent, it is hard to imagine a better scenario for them to effectuate that plan,” with the Capitol breached and Capitol Police overrun. Rhodes had “ample opportunity,” his lawyers write, “to order the weapons into D.C. to be distributed amongst the Oath Keepers who could have then stormed the Capitol and fomented the revolution” that the government claims they desired.
Instead, his lawyers note, “Rhodes and the others left the Capitol grounds and went to Olive Garden for dinner … because stopping the certification [and] overthrowing the government, was not Rhodes’ intent. It was not the Oath Keepers intent. The allegations the Government is levying against Rhodes are simply false.”
“Bombastic language” is not a crime
Rhodes’ lawyers argue that the militia leader is being persecuted for speech protected by the First Amendment. “The Government is attempting to convince this Court that unpopular or bombastic language is a crime,” their memo reads. “It is not.”
The memo admits that Rhodes believed in an imminent civil war, but calls that belief “protected speech” that is “far different than attempting or planning to effectuate such.” The memo also makes a strained argument that Rhodes’ belief that Trump would invoke the Insurrection Act gave him leeway to mobilize his militia. The government “is attempting criminalize preparation for an event that may occur upon the invocation of the Insurrection Act by the Commander-in-Chief,” his lawyers write.
The lawyers allege that Rhodes is guilty of nothing more than holding wrongheaded beliefs. “He was incorrect that President Trump would invoke the Insurrection Act; and he was incorrect that it would be necessary to take up arms,” the memo argues. “Simply stating those beliefs are, again, protected by the First Amendment and are certainly not Seditious Conspiracy.”
The wrong “poster child”
Rhodes’ lawyers contend that that the events of Jan. 6 developed “spontaneously” and “wholly unrelated to the Oath Keepers in any way.” But their memo alleges that the government is unable to accept that the breach of the Capitol was the “organic product of thousands of people who made their own decisions.”
Instead, the memo charges, the feds have been searching for a “focal point for the events of January 6, 2021, someone they can point to and say, ‘It’s his fault.’”
In its search for a “poster child” and a “scapegoat,” the memo argues, the feds have gravely exaggerated the danger of Rhodes and the militia he led: “To read the Government’s brief, it would have you believe that the Oath Keepers were the Branch Davidians,” they write, referencing the apocalyptic cult at the center of the deadly 1993 siege in Waco, Texas. “This is simply false.”
Read the full memo below: