Oath Keepers founder and seditious conspirator Stewart Rhodes left prison this week beaming — President Donald Trump had commuted his sentence, nullifying Rhodes’ 18-year term behind bars.
“It’s a good day for America!” Rhodes exclaimed.
But soon, Rhodes began to complain.
“I’ve been told I have to report to probation,” he later told reporters while on a victory lap of the Capitol building on Wednesday. “My probation office will have to give permission to go shake the President’s hand,” he griped.
Rhodes said that he was meeting in the Capitol with Rep. Gus Bilirakis (R-FL). Ivan Raiklin, a January 6 plotter known for his enemies list, squired him around the building.
The longtime Oath Keepers leader, who organized what prosecutors described as an effort to “oppose by force the authority of the government of the United States” may face limits if he tries to reconstitute his group given how the commutations were written. The requirements to regularly report to law enforcement would almost certainly hinder some of the commuted’s ability to reengage in their militias or intimidate opponents for the duration of their supervised release, which is usually issued for three years. While at the Capitol, Rhodes complained that he’d need permission from probation if he wants to go to the White House, for example.
Per Rhodes’ conditions of supervised release, he is barred from associating with any terrorist or criminal extremist group, and cannot access material created by “groups or individuals who promote the use of violence to further an ideological or religious cause.” He needs approval from the probation office to travel, to use social media and online messaging apps, and must consent to regular and unannounced searches of any computer that he uses.
D.C. Judge Amit Mehta, who tried the case, reminded the commuted Oath Keepers in a Wednesday minute order that they must confer with prosecutors before requesting any change to their conditions of release. Mehta barred Rhodes and others in a Friday order from going to D.C. or the U.S. Capitol absent permission from the court.
It’s a bizarre situation for some of Trump’s most menacing supporters, who demonstrated on January 6 the lengths to which they would go to support him in an extralegal coup attempt. Now, Trump has rewarded them by freeing them from prison but, in these cases, without fully removing the requirements to remain under some control by law enforcement.
Oath Keepers attorneys claim that it’s unclear whether this was intentional on Trump’s part.
Trump pardoned the vast majority of January 6ers immediately after taking office, extending impunity to more than a thousand of the same people that he egged on into attacking the Capitol building four years ago. But for nine Oath Keepers and five Proud Boys members, he instead commuted their sentences. It’s difficult to discern any pattern of rhyme or reason as to why most were pardoned while some had their sentences commuted. Several people who did things such as beating police officers or attacking them with bear spray were pardoned. Proud Boys leader Enrique Tarrio, who was convicted of seditious conspiracy, received a pardon; Rhodes and some Oath Keepers, including some who were not present on January 6, received commutations.
Several attorneys who are representing or who formerly represented those who received commutations told TPM that they were confused about whether it was intentional that the commutations did not cover their clients’ terms of supervised release.
“I’ve looked through hundreds of commutations that previous presidents have made, including when President Trump was in his first term,” David William Fischer, an attorney for Oath Keeper Thomas Edward Caldwell, told TPM. Caldwell was sentenced earlier this month to 53 days of time served. “They all distinguish between commuting the jail term or prison term and commuting the supervised release.”
The Trump commutations do not make any specification. Rather, they only say that his action does “commute the sentences” of the 14 January 6ers.
“I’m not a mind reader and I don’t know the legal team that was behind it,” Caldwell added. “I’m confident that President Trump wasn’t behind the language; it was probably the legal team.”
It’s set off discussions among some attorneys over how to interpret the lack of clarity, whether to angle for a full pardon from Trump, and if they can use the perceived ambiguity to argue for no probation.
Mark Osler, a former federal prosecutor and law professor at the University of St. Thomas, told TPM that additional penalties and probation terms typically survive a commutation unless otherwise specified.
“Usually, it is just the prison term that is commuted and financial penalties and supervised release remain unless specifically addressed in the pardon warrant,” he wrote in an email.
Lee Bright, an attorney who formerly represented Rhodes, told TPM that he was similarly confused about whether the commutations applied to probation.
“Why did even the nonviolent Oath Keepers not get a pardon?” he asked.
Rhodes, during his Capitol visit, called his need to continue reporting to probation “absurd,” and said that he would apply for a pardon.
What form that request will take remains unclear.
Raiklin, the man who accompanied Rhodes around the Capitol, said that he would keep lobbying the House GOP on various January 6 coup-related issues.
“We’re communicating with pretty much the entire Republican conference at this point,” Raiklin told reporters.
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