WASHINGTON (CN) — Five members of the right-wing militia charged with seditious conspiracy in connection to the Jan. 6, 2021, Capitol riot will see the rest of their trial delayed after one of the defendants, Oath Keepers leader Stewart Rhodes, tested positive for Covid-19.
U.S. District Judge Amit Mehta, an Obama appointee, announced the delay until at least until Tuesday morning after he learned Sunday from U.S. marshals that 57-year-old Rhodes tested positive for the virus.
Monday would otherwise have marked day 14 of a trial that is deep into the prosecution’s case and is set to last another three to four weeks.
Defense attorneys told Judge Mehta that Rhodes is in isolation at the detention facility in Alexandria, Virginia, where policy requires him to undergo a 10-day quarantine.
The lawyers suggested three options in light of the the defendant’s status, including a 10-day delay to adhere to the jail policy.
But Judge Mehta was hesitant to institute such a delay because he said it could push back the already lengthy trial to next Monday. And it would require Rhodes’ to test negative, or else the case would be pushed back even further until he does.
The defense also posed the possibility of waiving Rhodes’ presence at the trial for government witnesses they deemed “inconsequential,” such as U.S. Capitol Police officers and members of the Secret Service. They argued Rhodes’ presence is not necessary for those who had no contact with him on Jan. 6 and cannot testify to his whereabouts that day.
But Judge Mehta told them that the decision to miss witness testimony in his own trial is one Rhodes must make himself.
“And I’m not sure you’ve contacted him about those possibilities,” the judge said, noting that the attorneys said they are having difficulty reaching Rhodes via telephone while he is in isolation.
Without Rhodes’ affirmative go-ahead, the judge said trial cannot proceed.
The third idea from the defense attorneys was to have U.S. marshals drive Rhodes approximately 13 miles each day from the Alexandria jail to the federal courthouse in Washington, where he would sit in a room by himself and watch proceedings via teleconference each day. That way, his attorneys said, they can contact him easier and hand him notes throughout the proceedings.
Judge Mehta rejected that option as well, however, saying he will not require U.S. marshals to be around Rhodes while the defendant is symptomatic and could transmit the virus.
Rhodes’ trial is expected to resume Tuesday morning with cross-examination of Whitney Drew, a former FBI agent testifying for the government.
All jurors were tested for Covid-19 last week after the judge dismissed one juror who tested positive for the virus on Tuesday. The remaining 15 jurors are now required to wear masks and undergo daily testing for the remainder of the trial.
Standing trial with Rhodes on seditious conspiracy charges are Thomas Caldwell, 68; Kenneth Harrelson, 41; Kelly Meggs, 53; and Jessica Watkins, 40.
They are accused of orchestrating the insurrection as part of a larger plot to “oppose by force the lawful transfer of presidential power.” While Rhodes did not physically enter the Capitol building, prosecutors say he spent months planning the assault, recruiting members and stocking up on weapons. Five people died in the attack, which delayed the ceremony that Congress had scheduled to certify the 2020 election results.
A seditious conspiracy charge carries a maximum sentence of up to 20 years in prison. It requires prosecutors to prove to the jury that the accused Oath Keepers had an actual agreement to "overthrow, put down, or to destroy by force" the U.S. government.
The Justice Department so far has charged more than 880 people in connection with the Capitol riot. As of Oct. 6, about 313 people have pleaded guilty to misdemeanors, about 99 have pleaded guilty to felonies. Approximately 152 people have been sentenced to prison time.
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