WASHINGTON - Stewart Rhodes is feeling the heat.
“I may go to jail soon,” the Oath Keepers founder declared at a recent Republican rally near the U.S.-Mexico border in Texas. “Not for anything I actually did, but for made-up crimes.”
Rhodes’ prediction that he might land behind bars over his role in the riot Jan. 6 at the U.S. Capitol came after prosecutors offered fresh evidence connecting him to the bloody attack that led to five deaths, including that of a Capitol Police officer.
In a March 23 filing, prosecutors revealed Rhodes had a 97-second phone call with an Oath Keeper named Kelly Meggs, nine minutes before Meggs helped lead a group of Oath Keepers in a military-style breach of the Capitol.
While federal prosecutors did not disclose whether they knew the content of the call, they presented it as part of “substantial evidence” of a conspiracy by the Oath Keepers to overturn the results of the November 2020 presidential election.
Approximately 800 supporters of former President Donald Trump overran the Capitol on January 6, according to the U.S. Capitol Police. Michael Sherwin, the former Acting U.S. Attorney for the District of Columbia, recently said prosecutors have charged more than 400 people in connection with the breach. Some of the charges remain under seal.
Among them are 12 members of the Oath Keepers, one of the largest anti-government militia groups in the United States. The eight men and four women are being prosecuted together on charges that they plotted to use force to obstruct the congressional certification of President Joe Biden’s Electoral College victory.
Meggs, the group’s Florida leader, is accused of coordinating the attack with members of the Proud Boys and the Three Percenters, and then leading a “stack” of more than a dozen people in paramilitary gear into the Capitol.
Graydon Young, another Florida Oath Keeper, allegedly arranged for weapons and combat training for himself and others. A third key player, Ohio-based militia leader Jessica Watkins, allegedly recruited members for the operation, telling one, “I need you fighting-fit by inauguration.”
In recent weeks, the case has taken on added significance as prosecutors have focused on identifying and charging the Capitol attack plotters and key participants from extremist groups. Yet conspicuously missing from the case is Rhodes, who has led the group since founding it in 2009.
A former Army paratrooper and Yale Law School graduate, Rhodes first showed up as “Person One” in court documents in late January when the first three of the 12 Oath Keepers were indicted on conspiracy charges, and prosecutors cited a Jan. 4 call to arms issued by Rhodes on the group’s website.
As investigators have continued to examine Rhodes’ role in the Capitol siege, they have made public a steady stream of previously unknown communications between the Oath Keepers leader and his subordinates. That prosecutors have not added Rhodes to conspiracy charges could mean they have determined they don’t yet have enough evidence to convict him, said Aitan Goelman, a former federal prosecutor who is now a partner at Zuckerman Spaeder law firm.
“They can show that he was in the mix, that he was communicating with the people who stormed the Capitol, that he was there. (But) so far, they haven't provided any evidence that Rhodes was part of a conspiracy, which is an agreement to storm the Capitol,” Goelman said. “Maybe they have that. Maybe that's forthcoming. But they haven't revealed it yet.”
Jimmy Gurulé, another former federal prosecutor who is now a law professor at the University of Notre Dame, said prosecutors appear to be methodically building a case against Rhodes.
“They are gathering evidence piece by piece through cellphone communications, viewing probably thousands and thousands of hours of videotape, and piecing together a conspiracy case that I think eventually will include Stewart Rhodes,” he said.
To charge Rhodes with conspiracy, prosecutors need evidence that he agreed with his subordinates to carry out the assault on the Capitol, Gurulé said.
“Rhodes doesn't have to be in the Capitol building participating in the siege of the Capitol building. All he has to do is agree,” he said.
Rhodes has denied any wrongdoing. He did not respond to multiple email and text messages from VOA seeking comment.
A Justice Department spokesperson did not respond to a request for comment.
Until recently, little was known about Rhodes’ activities on Jan. 6. But in recent court filings on the 12 indicted Oath Keepers, prosecutors have disclosed extensive communications that put him at the center of the operation.
In early March, prosecutors revealed the existence of a chat group on the encrypted messaging app Signal that they said Rhodes and his followers used to conduct surreptitious communications before, during and after the Capitol breach.
In an undated message in a chat group called “DC OP: Jan 6 21,” Rhodes advised the group what to bring to Washington on Jan. 6: flashlights, hard gloves and helmets; and what to avoid: guns. He promised that “we will have several well-equipped (Quick Reaction Forces) outside D.C. And there are many, many others, from other groups, who will be watching and waiting on the outside in case of worst-case scenarios,” he wrote.
The first group of rioters breached the Capitol shortly after 2 p.m. While Rhodes remained outside as the attack was unfolding, he was far from a passive spectator, according to prosecutors.
At 2:14 p.m., a person in charge of the group’s operations wrote on Signal that “the(y) have taken ground at the capital [sic]. We need to regroup any members who are not on mission.”
Rhodes allegedly reposted the message with the instruction: “Come to South Side of Capitol on steps.”
Rhodes then posted a photo showing the southeast side of the building. Less than half an hour later, he posted another photo of the southeast side of the building with the caption, “South side of US Capitol. Patriots pounding on doors(.)”
It was around this time that members of the stack, led by Meggs, forced their way into the Capitol complex through the east side of the building, according to court documents.
Gurulé said the Signal post is “very incriminating.”
“It shows not only his knowledge of the events taking place in real time at the Capitol on January 6, but that he's directing his followers with respect to their activities at the Capitol building,” Gurulé said.
Last week, prosecutors added two previously charged members of the Oath Keepers to the conspiracy case.
In the March 31 superseding indictment, prosecutors disclosed that Rhodes exchanged at least 10 phone calls with three members of the Oath Keepers on Jan. 6, including Meggs, and another person that Rhodes put in charge of the Capitol operations.
Rhodes continued to communicate with his followers well after the breach, according to court documents. At 5:50 p.m. he went on Signal.
“Leaders, check to be sure you have all your team members. If anyone is missing, post here.”
Nearly two hours later, he penned a long message.
“Patriots entering their own Capitol to send a message to the traitors is NOTHING compared to what's coming if Trump doesn’t take decisive action right now,” Rhodes wrote.
At the Texas rally last month, Rhodes called the charges against the Oath Keepers and the Proud Boys a “persecution campaign” and denied that they engaged in an insurrection. They were there to provide security to Trump supporters, he said.
“If we actually intended to take over the Capitol, we’d have taken it. We’d have brought guns,” he said.
That’s not a persuasive argument, Goelman said.
“There are a lot of reasons that you can think of that even if the Oath Keepers did have a plan to storm the Capitol and to disrupt the counting of the delegates, that they wouldn't have come armed, because that would have potentially precipitated their arrest before they even got to the Capitol,” Goelman said.
The 12 Oath Keepers face five criminal counts, from conspiracy to obstruction of an official proceeding. Gurulé noted that the obstruction count carries a prison sentence of up to 20 years, a lengthy enough term that could induce some into “flipping” on Rhodes and cooperating with the government.
While none of the indicted Oath Keepers is known to be talking to prosecutors, “if one of them breaks ranks and agrees to cooperate and testify, then it could very well open the floodgates, and other members of the Oath Keepers could agree to do the same,” he said.