A federal judge on Monday said she would likely rule in the next day or two whether to release the founder of the far-right "Oath Keepers" militia group pending trial.
Elmer Stewart Rhodes appeared in a U.S. federal courthouse for the Eastern District of Texas in Plano wearing a black and white Collin County Detention Center uniform.
Attorneys sent approximately 90 minutes arguing if Rhodes, 56, should remain in custody until he is brought to trial for his alleged role in the Jan. 6, 2021, attack on the United States Capitol.
Rhodes is among a small group of alleged Jan. 6 participants facing the most serious charges leveled to date by the federal government – seditious conspiracy.
Federal investigators said Rhodes and 10 other Oath Keepers communicated in the weeks prior to the Jan. 6 incident that they would “oppose by force the lawful transfer of presidential power,” according to papers filed by the prosecution.
“We aren’t getting through this without a civil war,” Rhodes said in an online message to other Oath Keepers in late-November 2020. “Too late for that. Prepare your mind, body, spirit.”
On Monday, Assistant U.S. Attorney Kathryn Rakoczy argued Rhodes showed a contempt for the law and Constitution that would make it impossible to trust that he would comply with any pretrial release conditions a judge may place on him.
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Michael Palian from the FBI’s Washington Field Office testified on Monday that Rhodes also destroyed evidence by deleting text messages that revealed his role in the attack.
Defense attorney Phillip Linder said his client poses no flight risk because he has no passport and has been cooperating with federal investigators examining the Jan 6 attack since May 2021.
"Whether you believe in what he stands for or not, he has a very public platform that he wants to put forth," Linder said to reporters. "And for him to duck and run and avoid a trial thwarts all of that.”
A defense witness that only gave his first name "Benjamin" to magistrate judge Kimberly C. Priest Johnson said he is married to a cousin of Rhodes', lives in California and could help ensure that he adheres to any stipulations the judge would provide if Rhodes is released pending trial.
The Oath Keepers are a loosely organized group, which includes some members with ties to militia groups.
Prosecutors claim Rhodes and his "co-conspirators" shared a step-by-step plan to take the Capitol building by force in order to prevent Congress from certifying the results of the November 2020 presidential election.
Rhodes wrote that if President-elect Biden were to assume the presidency, “We will have to do a bloody, massively bloody revolution against them,” according to documents filed by federal prosecutors.
Defense attorney James Lee Bright told reporters after the hearing that Rhodes ordered the militia group to assemble and meet up outside the Capitol but only after the breach had occurred.
"If some of the other members went out and did that individually, like several thousand unfortunately did, that’s not necessarily under the guise of the Oath Keepers," Bright said.
If convicted of seditious conspiracy, Rhodes faces up to 20 years in federal prison.