Nearly a week after getting slapped down by the federal judge overseeing his criminal case, Oath Keepers founder Elmer Stewart Rhodes III filed a flurry of new motions asking that a special master be appointed to oversee discovery evidence, separating his case from other co-defendants, and again requesting a trial delay.
Within hours, U.S. District Judge Amit Mehta denied the motions, writing that he would explain his decision at a Sept. 14 pretrial conference.
Rhodes also moved to suppress a November 2020 Oath Keepers GoTo Meeting session that he suggested could have been illegally wiretapped. That motion is still alive.
“The largest and most complex case in history is being allotted the shortest time to prepare,” Tarpley wrote in one motion. “And Rhodes and codefendants are being deprived of the tools necessary to defend themselves.
“The government’s advantage in this case could not be greater,” he wrote. “This trial scheduled to start on September [27] will be like a little league team facing the New York Yankees.”
“Special masters can promote efficiency in discovery, the phase of litigation that is most likely to break down and cause delays to case resolution,” Tarpley wrote in one 10-page motion. “Discovery in this case is more massive than the discovery in many cases where courts have appointed special masters to help manage discovery.”
Recent cases that made use of a special master included the 2020-2022 Michigan Gov. Gretchen Whitmer kidnapping case, and the 2018 Nevada prosecution of rancher Cliven Bundy and two of his sons, Tarpley wrote. Former President Donald J. Trump asked a federal court in Florida to appoint a special master to examine materials seized in the FBI’s recent raid of his Mar-a-Lago residence in Florida.
Tarpley said SoRelle’s testimony before the House Jan. 6 Select Committee will be crucial exculpatory evidence for Rhodes and the Oath Keepers, but the committee has not released transcripts. On Sept. 7, Mehta said he has no legal authority to compel the committee to turn over transcripts from SoRelle’s appearance.
Rhodes has been placed in several detention facilities since his January arrest, Tarpley wrote, and his access to discovery materials has been sparse compared with other Jan. 6 defendants.
November Meeting Evidence
In another motion, Tarpley asked Mehta to throw out prosecution evidence (pdf) based on an audio recording of a Nov. 9, 2020, online meeting using the GoTo Meeting conferencing system.Information from the online meeting helps form the core of the government’s case that the Oath Keepers engaged in a seditious conspiracy to obstruct counting of Electoral College votes on Jan. 6 and prevent the “peaceful transition of power” between Trump and Joseph Biden Jr., Tarpley said.
The digital file of the meeting is from a video device that is not pointed at the computer screen but captures the audio signal, Tarpley wrote.
“This may suggest that the recording person was not an invited member of the conversation who did not want to record video, just the audio,” Tarpley wrote. “Or at least it presents a question that deserves being answered as to the identity of the recording person. An uninvited person might not qualify as a “party” in either a one-party or two-party consent state.
In two-party consent states, all parties on a call must consent to it being recorded, he said. In one-party consent states, recording is legal as long as one of the participants is doing the recording.
The recording includes “dozens of examples of the defendants trading over-the-top, embellished statements mainly with each other, predicting that others (not them) might engage in violence…” Tarpley wrote.
Tarpley said as an alternative, he asks that Rhodes be placed in the Nov. 10 Oath Keepers trial group, an idea opposed by prosecutors.
“The government is actually alleging that Rhodes participated in a plot to overthrow existing government or to unlawfully thwart the transfer of presidential power,” he said. “Rhodes has simply not been provided with sufficient time, evidence, and communication with counsel in order to defend himself.”
Other defendants in the Sept. 27 trial have filed motions to compel prosecutors to provide exculpatory evidence that defense attorneys insist has been withheld. Rhodes also joined in those motions. Mehta earlier rejected similar motions.
Defendant Thomas Caldwell filed a motion seeking to allow into evidence allegedly inconsistent statements made by prosecutors about his role in the charged Oath Keepers conspiracy.
“Caldwell intends to introduce substantial evidence and arguments that the government wrongly accused him (and his co-defendants) of multiple criminal acts in the aftermath of January 6,” attorney David Fischer wrote. “Additionally, Caldwell believes that the evidence outlined below demonstrates that the government has ‘changed its story’ in relation to the events of J6 as they pertain to Caldwell and others.”
Federal prosecutors have opposed all of the major defense motions. Tarpley said he spoke to prosecutors about his new motions on behalf of Rhodes and they indicated they would file opposition to them.
