Stewart Rhodes’ Detention Hearing Clarifies Investigative Challenges

Last April, I noted that Stewart Rhodes was on overlapping phone calls with Kelly Meggs and Person Ten (since identified as Mike Simmons AKA Greene) that suggested Rhodes had conferenced the two together.

We now know that about a month after that, the FBI interviewed both Rhodes Simmons AKA Greene and obtained their phones. Here’s what Simmons AKA Greene said about his calls during this period in his second interview.

We have yet to see Rhodes’ interview report (it must not be that helpful, or Meggs or Kenneth Harrelson would have released it). Prosecutor Kathryn Rakoczy described that there were tens of thousands of Signal texts on Rhodes phone, and it took a good deal of time to sift through that all for both exculpatory and inculpatory evidence.

Whether just those interviews or call records, the investigation has confirmed I was right. Here’s how that call appears in the sedition conspiracy indictment charging Rhodes and Meggs, but not Simmons, unsealed last month.

92. At 2:32pm., MEGGS placed a phone call to RHODES, who was already on the phone with the operation leader. RHODES conferenced MEGGS into the call.

The call was one of the contentious issues in a detention hearing for Rhodes before Judge Amit Mehta yesterday that illustrates why even this investigation has taken so long.

Prosecutor Kathryn Rakoczy argued that the call suggested that, before the Stack busted into the Capitol, Rhodes encouraged the intrusion in some way. Rhodes’ attorney James Bright, on the other hand, noted that all three men have denied they talked about busting into the building. Mehta seemed reasonably convinced by Rakoczy’s inference — but absent more proof about what was said, wasn’t sure that was strong enough to hold Rhodes on.

Judge Mehta didn’t resolve the detention question yesterday. Rakoczy also presented evidence that the third party custodians proposed by Rhodes weren’t entirely forthright about their ties to the Oath Keepers in an earlier detention hearing. Plus, Mehta seemed unconvinced that placing Rhodes in the custody of family members who would be in a different house (he would share a building with no Internet access with older adults) would provide enough supervision. One way or another, though, Rhodes will either be under home incarceration or remain jailed.

Which made the hearing more interesting for the way it revealed certain things about the case.

Take Mike Simmons AKA Greene, currently referred to as the “operation leader” in indictments. He called into the hearing as a potential witness for Rhodes (he failed to keep his second pseudonym secret before other journalists called in), meaning he was willing to testify under oath and be cross-examined about the substance of that call. That makes it quite clear he is not cooperating with the government. Which, in turn, means that the government simply hasn’t found probable cause to charge him yet (unlike Rhodes, he hasn’t left a string of damning comments online and on his cell phone). The government believes he didn’t tell the truth in two interviews last May, but thus far they’re not prepared to charge him.

Part of the problem pertains to that phone call. The government has multiple cooperating witnesses to what Meggs did in Florida before the riot. They’ve got cooperating witnesses to what Meggs did inside the Capitol. They’ve got a cooperating witness implicating Joshua James’ actions that day. They may have a witness to James’ side of conversations with Simmons AKA Greene from the Willard Hotel, where the Oath Keepers were with Roger Stone.

But because all three men on that critical phone call — Rhodes, Simmons AKA Greene, and Meggs — remain uncooperative, the government can’t prove what happened on it. The government likely needs to flip one of them or James to get further.

Which may be why the attorney for Jonathan Walden, Thomas Spina, submitted a motion to continue yesterday, discussing a, “possible resolution of this case.” Notably, the motion was dated February 15, but it stated that a reverse proffer necessary to conduct what must be plea discussions couldn’t happen until February 11, which would have been last Friday. If Walden has key information prosecutors need to move further in its investigation into what the Oath Keepers were doing with Roger Stone, he can likely demand a pretty sweet plea deal.

There was one other really fascinating development yesterday. Rhodes’ attorney, Bright, argued that everything Rhodes did was designed to comply with the law. The Quick Reaction Force remained, all the time, in VA, even when Ed Vallejo offered to bring in arms. Bright argued that was proof that Rhodes didn’t take the opportunity to arm when he could have.

More interesting still, it’s clear Bright will argue that, under an interpretation of the Insurrection Act, the President can rely on private militias. That is, Rhodes is going to argue that an insurrection would be legal.

That’ll be an interesting legal debate!

There are factual problems with Rhodes’ story that I’ll let the prosecutors unpack at a future time.

But yesterday’s hearing confirms something I laid out some time ago: Each step prosecutors take away from those who trespassed, defendants will be able to make First Amendment challenges to their prosecution, however unbelievable, that will make prosecution more difficult. To get from Stewie to Roger Stone, I’m sure they’ll need some more cooperators.

And until then, DOJ will be able to make a persuasive inference about what happened on that phone, but not direct proof.

Update, February 19: Last night Judge Mehta detained Rhodes. Interestingly, AUSA Kathryn Rakoczy stated that she agrees Rhodes shouldn’t be housed in the DC jail with the other Jan6ers, so he may stay in Texas. The Oath Keepers investigation is run so much more smartly than the Proud Boys one.

40 replies
  1. dssme says:

    There enlies the lies

    They keep lieing or not talking and the crimes remain unpunished

    America, home of the free

    • KrazyKat says:

      Crime marches on.

      [Welcome back to emptywheel. Please use the same username each time you comment so that community members get to know you. This is your fifth user name since 2018; you’ve also posted as Fat Freddie’s Cat, Richard Kohal, porgy tirebiter, f f skitty. Please pick one of these and stick with it. Thanks. /~Rayne]

  2. Savage Librarian says:

    I’m not understanding how on earth the government could prevent Rhodes from using the internet at his cousins’ home. Couldn’t he just use a cellphone that belongs to someone else? Would the cousins have to agree to have their phones monitored? What if an extra special friend visits with an extra special phone that leaves when the friend leaves?

    I hope Walden realizes he may be a bigger fish in the pond than he originally thought. Let’s hope he is able to provide a productive resolution and earn a fair deal in the process. He can start by throwing pebbles, then stones.

    • Leoghann says:

      The government can’t physically prevent Stewie from using the internet. But that will be a condition of his pre-trial release, if he gets it, and there will be Federal Probation Division agents who will visit unannounced at odd (and frequent, given the nature of his case) intervals. If he’s ever found to be in violation, he’ll go straight back to lockup.

    • Charles Wolf says:

      “Couldn’t he just use a cellphone that belongs to someone else?”

      Yes but connections from any phone would need to ping local towers, necessarily leaving breadcrumbs that can reveal the location of the connection.

  3. pdaly says:

    I hope the prosecution is able to get someone to cooperate.

    Simmons mentions yet again that he goes by Greene? It does not seem like it was accidental. He did the same thing for the July 2021 Mother Jones article:

    “Simmons also goes by the name Michael Greene (he declined to explain why) and said that he is a former employee of Blackwater, the infamous private security company founded by Erik Prince, a claim Mother Jones was unable to verify.”

    I’m not sure what it all means, however.

    Also of note, the name SIMMONS does not fit in the redacted space for “Person 10” in the FBI’s 302s. The name GREENE does.

  4. harpie says:

    D.C. police lieutenant suspended over alleged ties to right-wing group
    Peter Hermann and Devlin Barrett 2/17/22 8:29 p.m.

    A D.C. police lieutenant in the intelligence branch [Shane Lamond, a 22-year veteran] has been put on leave amid an investigation into alleged improper contacts with a prominent member of the extremist group Proud Boy, according to four law enforcement officials with knowledge of the case. […]

    Law enforcement officials said there is evidence suggesting communications between Lamond and Henry “Enrique” Tarrio […]

    [TARRIO] said he provided Lamond or other police officials advance notice when the Proud Boys planned to rally or march in the District.

    But Tarrio also said that during marches, Lamond would tell him the location of counterdemonstrators. […]

    They are talking about 11/14/20 and 12/12/20 MAGA Marches. [IE: COORDINATE]

  5. punaise says:

    Per Cheryl Crow, with some license taken:

    Everyday brings a whining Rhoades
    I get a little bit closer
    Everyday is a faded sign
    I get a little bit closer to feeling confined

  6. Rugger9 says:

    OT: Well, well, well…

    Individual-1 and his kids are ordered to testify to AG Letitia James according to the AP and summarized by DKos. Eric already testified for 4+ hours repeating his ‘5th Amendment’ mantra but now Ivanka and DJTJr get to join Individual-1 in the barrel. Note that the topic has nothing to do with any POTUS duties, and might have gotten a boost from the Mazars letter. Michael Cohen is probably LOLHAO.

    • TooLoose LeTruck says:

      Oh yeah… that Mazars thing…

      Speaking of Trump and Mazars, I came across a good read over at The Atlantic last night…

      Faith Hill, an associate editor at The Atlantic, wrote a brief retrospective on the work P.J. O’Rourke did while a staff writer there, and one of the archived articles she used as an example of his style and approach to current events is a piece he wrote about Enron and Arthur Anderson back in 2002, in the aftermath of Enron’s implosion.

      I have to admit, when the news of Mazars disavowing 10 years of work done on behalf of Trump broke this week, one of the first names that popped into my head was indeed Arthur Anderson.

      And the particular piece I’m referring to hear gives you a decent if broad sense of what might be going on between Trump and Mazars right now. It doesn’t and can’t explain specifically what’s happening there but what it did for me was help give shape to my feelings and thoughts about all of it.

      I thought the article helps explain not how Trump and Mazars did what they did but maybe gives you a sense of how and why they were ABLE to do what they’ve been doing, and that alone is a worthwhile accomplishment.

      Yes, the Enron case involved much larger numbers than anything Trump could hope to approach and in the end, fraud is fraud.

      The key phrase here is “beyond a certain point, complexity is fraud”…

      And what did I read about Mazars this week, that they had turned over 500,000 pages of documents to James?

      It’s worth reading, IMO, if you have access to the Atlantic.

      • Rayne says:

        There had to have been a threat made to Mazars after all this time — they had to have seen criminal liability and/or a dramatic loss of business if they continued to work for Trump+Trump org versus cooperating with prosecutors.

        What really made me laugh was this observation:

        It’s right there, he voluntold the court Mazars relied on his cooked numbers by way of furnishing Mazars’ letter saying they relied on his cooked numbers.

        In 2014.

        I almost wet myself laughing.

        • TooLoose LeTruck says:

          Personally, I think Mazars is doomed like Arthur Anderson was, by their entanglements w/ Enron.

          Yes, I would suspect there are some rather severe consequences in the process of coming to earth for them, no matter what that letter says.

          Running out the door screaming is hardly a valid defense.

          I’m going to have to find that complete letter… just the part I read in that tweet amazed me.

          “Now just so you all know, we’re not taking ANY responsibility for ANY of the numbers we’re using here… it’s ALL on Donald!”


        • TooLoose LeTruck says:

          Wow… I found that entire letter and just read it…

          Incredible… Mazars as much as said, “Hey, these are the numbers Donnie gave us and we just accepted them, carte blanche, no questions asked.”

          As far as Donnie being able to claim he didn’t know what was in his papers, that defense just disappeared in a puff of oily smoke, if I’m not mistaken.

          And I see where Donnie claimed his ‘brand’ had a worth of $2.8 to $3 BILLION, at one point… the jaw… it drops…

          I have to wonder, as his ‘brand’ loses its luster and associated ‘value’, will he try to take the losses against income on his tax returns?

          And what was that number?

          Nine MILLION pages of documentation?

          What did the late, great Mr. O’Rourke say?

          “Complexity is fraud”…

            • TooLoose LeTruck says:

              I do not doubt in the least that both Trump and Mazars have been hiding behind that principle for years and years…

              Just how many trees do you have to cut down to produce 9 million pages of documentation?

              • xy xy says:

                No different for banks.
                Banks send their own auditors to small and medium-size businesses that are “audited” by CPAs to count inventory among other things every so often to make sure there is sufficient collateral covering their loans.
                I can’t see that they don’t do the same, visiting and revaluing assets someone they’ve lent hundreds of millions to on an on-going basis.

        • christopher rocco says:

          I believe that little maneuver is what folks here like to refer to as “self-defenestration.” Or, alternatively, “throwing oneself under the bus.”

          And about a threat to Mazars, I remember George Conway noting that the prosecutors probably got to Mazars and that prompted the divorce.

          • xy xy says:

            Funny that Mazars and predecessor partners didn’t see a problem and bail after decades of writings by David Cay Johnston and others, his dumber-than-dumb depositions, the university and charity frauds and settlements, NYT articles’ findings on questionable tax and financial issues, Michael Cohen spilling the beans to Congress.

          • Rayne says:

            In essence, yes — the letter from an accounting firm served as imprimatur for a global auditing and accounting firm, literally providing cover over the contents. However the letterhead provided the imprimatur, not the letter itself since it more or less said “this financial report is only as good as its Trump-provided numbers.”

      • Alan Charbonneau says:

        Per, Judge Arthur Engoron thought the Trump arguments were ludicrous…
        “The idea that an accounting firm’s announcement that no one should rely on a decade’s worth of financial statements it issued based on the numbers submitted by an entity somehow exonerates that entity and renders an investigation into its past practices as moot is reminiscent of Lewis Carroll (‘When I use a word, Humpty Dumpty said … it means just what I chose it to mean — neither more nor less’); George Orwell (‘War is peace, freedom is slavery, ignorance is strength’): and ‘alternative facts,'” Engoron wrote.
        “To proclaim that that Mazars’ red-flag warning that the Trump financial statements are unreliable suddenly renders the OAG’s longstanding investigation moot is as audacious as it is preposterous,” the judge added.

        I’d post this on Twitter, but I pasted so many copies of Marcy’s Morning Joe interview, I got suspended for spamming! Bummer.

        • TooLoose LeTruck says:

          I saw that comment about ‘renders an investigation… as moot’, too…

          Again, the jaw drops…

          I guess when you appear this farked, running out the door screaming might indeed appear to be a viable defense.

          • Leoghann says:

            That defense tends to shrivel when it’s pointed out that you’ve been carefully tending the kindling for a decade.

            • TooLoose LeTruck says:

              And that defense probably isn’t the only thing shriveling up in Trumpworld right about now…

              Just saying…

              Hey… stop grabbing me like that…

              I KNOW where the door is…

              I can walk myself out, if you don’t mind…

        • earlofhuntingdon says:

          The limiting language in Mazars’ letter may go some way to limit its liability, but only to the extent a third party knew about it ahead of making any decision based on Trump’s numbers. It’s not a simple analysis. And it assumes Mazars was not aware of outright fraud or financial crimes related to those numbers, which is not an assumption I would take to the bank.

          It goes nowhere, though, in limiting Trump’s liability. To the extent he used them to obtain loans or to file his tax returns, he (Trump/Trump Org, as applicable) is making an independent statement as to their accuracy, which would negate any limitation.

          Being Trump, he might have said: “Here, lender, are my financial statements. Don’t rely on them – even my accountant/compiler says they’re not reliable – but give me my money as if they were!” I would say that’s an admission that he submitted false financial statements. It’s not a simple question whether a lender reasonably relied on them in making a loan, but the statements are false.

          As for tax returns, the argument – and intentional chaos – goes absofuckinglutely nowhere. You file a return, you’re on the hook for the numbers you supply. And Trump has a long pattern and practice of submitting crap. He brags about it.

          • Rayne says:

            I wish I could remember all the changes in legislation and FASB requirements post-Enron/Worldcom accounting; something sticks in my head about the inability to audit asset valuations. Can’t find what I’m looking for about this as well as the obligations of the accounting firm to be more specific wrt figures which can’t be audited — I want to say the firm signing the statement has liability when it can’t provide reasonable explanations.

            The only thing which has changed is that Mazars finally got called out on their work after all these years.

            • xy xy says:

              If he altered or printed a different Accountants’ Report or financials using Mazars letterhead and presented those to his creditors, would the DA have announced that or is that criminal and Vance and Bragg get to deal with that?
              Could that be the straw that broke Mazars’ back?

              • Rayne says:

                I’ve not seen anything to indicate this is a possibility, especially when he’s tweeting a 2014 letter which wasn’t particularly complimentary. No, I think Mazars realizes this has gone on so long they look like part of the repeated frauds.

          • P J Evans says:

            Anyone who’s read the statement above the sig line on the return should know that you’re attesting to the accuracy of the data on the return. (I’d rather underestimate deductions than overestimate!)

  7. Geoguy says:

    This is from ProPublica a couple of years ago:
    “TRUMP, INC.
    Meet the Shadowy Accountants Who Do Trump’s Taxes and Help Him Seem Richer Than He Is”
    by Peter Elkind, ProPublica, and Meg Cramer, WNYC, with Doris Burke, ProPublica May 6, 2020, 4 a.m. EDT

  8. harpie says:

    4:33 PM · Feb 18, 2022

    Some *big* red flags in the Stewart Rhodes’ detention hearings.
    1) The defense says Stewart can stay with his cousins Kyla & Ben pending trial.
    2) Kyla & Ben have two homes on the property.
    They live in one and her parents live in the other. Rhodes would stay with her parents.

    In today’s hearing, the BOP had some news about the Ben/Kyla/parents’ situation that was so big, it required the Judge to hear it in private.
    This was *very* suspicious.

    So I dug. And dug. And dug.

    Turns out that Kyla’s mom is the daughter of the inventor of the sovereign citizen “corporate redemption.” Roger Elvick was, without doubt, the most famous sovereign citizen/promoter in history. [THREAD]

    Marcy’s THREAD about today’s decision in RHODES detention hearing:
    5:15 PM · Feb 18, 2022

    RHODES will go to the DC jail until trial.

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