The Oath Keepers sedition trial continues Thursday and Daily Kos is back at the federal courthouse in the nation’s capital to cover proceedings.
There was a brief break in the schedule this week since the court was closed on Wednesday in observance of Yom Kippur. But on Thursday, the Justice Department hit the ground running with a request for U.S. District Judge Amit Mehta: The admission of a “death list” found at the property of defendant Thomas Caldwell.
Following hours of testimony from FBI Special Agent Michael Palian and cross-examination by attorneys for the defendants earlier this week, the Justice Department says several remarks made by Caldwell’s attorney David Fischer during questioning opened a door that once was shut.
In August during a lengthy pretrial conference, prosecutors sought to admit a handwritten “death list” found at Caldwell’s Virginia home. The list featured the names of two election workers from Georgia who were harassed repeatedly during the 2020 election as former President Donald Trump and his supporters smeared them with accusations of election fraud.
Mehta ruled that the list should be excluded from evidence because—disturbing it may be—it still didn’t bear a strong enough connection to the actual charges. In particular, Mehta warned it might be inflammatory to jurors.
But during the cross-examination of Palian, the Justice Department now argues that Caldwell’s attorney went over the line. Fischer underplayed and potentially misrepresented the allegedly incriminating evidence found during a search of Caldwell’s home, and he did this by painting Caldwell to be solely focused on potential threats to the public by supporters of the “antifa” or antifascist movement.
Per the motion from the Justice Department filed on Oct. 6:
“For instance, counsel asked several questions about the FBI’s review of Caldwell’s “computer, phones,and other correspondence,”and whether the FBI located “any maps that led people tolawmakers’ houses or residences?” More pointedly, he later asked “would you agree you got it wrong when you thought that Mr. Caldwell – his prestrike recce had something to do with stopping an election?” Referring to an “op plan” found on one of Caldwell’s computers and referenced in one of his notepads recovered by the FBI, Caldwell’s counsel asked,“So the whole entire op plan you’ve been referencing, or the government’s been bringing up regarding Mr. Caldwell appears to be something regarding Antifa; correct?”
The point of these and other questions was to suggest to the jury that the materials found on Caldwell’s computer and notepad recovered at his house concerned innocuous topics like bathrooms and“antifa,” rather than anything to do with “stopping an election.” But the “death list,” also found in Caldwell’s correspondence in his house, is incriminating and directly relates to“stopping an election.” And so it should now be admissible to rebut Caldwell’s false impressionto the jury that nothing came of the FBI’s search of his residence as it relates to his intent and the current charges.”
It will be another long day in court with the potential for new witnesses to take the stand. If you missed what happened on Day Two, check out the related link below. Live updates will post here in this blog and on Twitter.
Proceedings are now underway and for the first order of business: Mehta has denied the government’s request to admit the “death list” allegedly penned by defendant Thomas Caldwell into evidence.
We start with redirect of FBI Special Agent Michael Palian by the Department of Justice.
Prosecutors are having Palian review an email that included an “ops” plan:
Redirect of Agent Palian provides the DOJ a rich opportunity to push back against the claims asserted by defense attorneys during cross examination last week, including those suggestions that defendant Thomas Caldwell was simply too weak and too old to storm anything. And the DOJ is also picking apart the assertion from defense that he was merely doing recon in the days ahead of Jan. 6 because he wanted to scope out things like access to portapotties or entertainment by way of a gentleman’s club.
DOJ addresses the claim by defense that the “storming the castle” language used by Caldwell was a mere reference to the film, The Princess Bride.
“Storming the castle” was often coded language used by Oath Keepers to discuss their activities on Jan. 6, Agent Palian said.
He also defended the search warrant of Caldwell.
Defense attorneys argued Caldwell was arrested because the FBI botched its understanding of where Caldwell was located when he was on Capitol grounds on Jan. 6 and suggested he was wrongfully indicted.
The footage from that day, the way the light was cast in the photos of Caldwell near the doors of the Capitol led agents to believe the retired Navy intelligence officer was physically inside the building.
And as prosecutors continue to reestablish motive for jurors, more messages are pulled up for review. Like those Caldwell wrote to Oath Keeper Donovan Crowl.
There seems to be some confusion in the comments — right now, Agent Palian is taking questions on redirect from prosecutors and this is happening in front of the jury. The motion on the death list was the only thing that was done outside the presence of jurors.
In a text that jurors may be hard-pressed to forget:
Oath Keeper Caldwell wrote on Facebook on Jan. 1, 2021:”It begins for real Jan 5 and 6 and on Washington when we mobilize in the streets. Let them try to certify some crud on Capitol Hill with a million or more patriots in the streets. This kettle is set to boil…”
Prosecution just ran through a long series of texts sent to Caldwell on Jan. 6
Another text: “Hell yes brother patriots making a rise, need to take what’s ours…Then to Caldwell: “Tom all legislators are down in the tunnels 3 floors down”
Palian told jurors all of this “caused us to believe he was receiving instructions from outside while he was inside the Capitol.”
We have been on a brief break before resuming questioning of the trial’s first witness, Michael Palian.
It is almost noon ET and he has been on the stand since roughly 10 a.m. ET today. He testified on Tuesday for over four hours.
The government has predicted that the trial could run for five to six weeks and at this rate, that estimate may be correct.
Time will tell.
Jurors back in a moment.
In a truly surreal moment, prosecutor Jeffrey Nestler alerts Judge Mehta that he’s received an email this morning indicating that disbarred Oath Keeper attorney John Moseley has threatened to release FBI 302s, or a witness summary, publicly.
Those 302s are under a protective order though Moseley contends they are not.
Addressing attorneys present in court and reporters also observing from here in the media room, Mehta said the press should go ahead and tweet out the following so Moseley is made aware:
“If he releases any material subject to a protective order, he will be held in contempt of court,” Mehta said.
“I get to decide whether something has lost its protective order status, not you,” Mehta said, addressing Moseley as if he were in the room though he is not.
Questioning of FBI Special Agent Michael Palian is done. We are moving on to the second witness, John Zimmerman, a former member of the Oath Keepers in North Carolina.
He served in the Army and Army reserve for 27 years and previously ran his own emergency preparedness business.
Zimmerman said when he first got hooked up with the Oath Keepers in Aug/Sept 2020, he told Paul Stamey (NC OKer) that the group seemed disjointed/disorganized.
Stamey told him if he wanted to make it better organized, he should join.
In Sept of 2020, Zimmerman learned that security details were being weighed for a Trump rally in Fayetteville. Rhodes wanted Zimmerman to help and took him to dinner to talk logistics with him and others.
More testimony from Zimmerman:
Big piece here.
Prosecutors asked: how would the Oath Keepers know if or when Trump would invoke the Insurrection Act, anyway?
According to John Zimmerman, the former Oath Keeper from North Carolina, it was Rhodes who told him he had a contact at the Secret Service.
That Secret Service agent was allegedly in contact with Trump. That might be how they would learn if he was going to invoke it and call them up for assistance.
An important distinction here: Rhodes said the person was Secret Service. Zimmerman did not talk to this person nor was Zimmerman able to confirm that this person was an actual member of the Secret Service.
Zimmerman said suggestion from Rhodes disgusted him because he felt it was entrapment. When Rhodes told him Oath Keepers they should make threats and “trick people into attacking you so you can give them a beatdown,” Zimmerman said,”no, that’s not what you do.”
Oath Keepers were meant to provide a community service and branch out from their local issues to national ones as it was. The mission Rhodes now presented was contrary to that, and contrary to much of what Oath Keepers in Zimmerman’s division wanted.
This, according to Zimmerman, caused a schism.
Rhodes wanted people to go back to DC for personal security details, Zimmerman said part of the argument that day among members was that some felt they were no longer there to offer security.
“We were only there to participate in the march to show support for Trump but there was no mention of security,” Zimmerman said.
Rhodes attorney Phil Linder pushed back on this a bit and told him, well, “that is how you perceived it.”
Zimmerman testified that was the “general consensus.”
On redirect of Zimmerman, an attorney for Kelly Meggs, Stanley Woodward, tries to get Zimmerman to say that the QRF for the Nov 14 Million MAGA March was about protecting against BLM or antifa but Zimmerman, again, said it was about preparation for Trump invoking the Insurrection Act.
Zimmerman: “Our whole point for November was to be a part of the Million MAGA March and support President Trump. It was never about providing a security detail… I don’t care how many times it is said ‘that’s obviously what we do.’”
Before going to lunch, the hard-to-control and harder-to-predict witness John Zimmerman again pushed back against defense attorneys who wanted him to assert that the Oath Keepers primary mission involves providing security when called upon.
Zimmerman said that may be true but on Nov. 14, it was about supporting Trump and being prepared in case the Insurrection Act was invoked.
During redirect by defense attorney Brad Geyer—he represents Kenneth Harrelson—Zimmerman said if the Oath Keepers are “out there beating up people, that’s not a good look” for the group.
Before he left the stand, Zimmerman masked himself.
His mask read: “Front towards enemy.”
This is something etched onto claymore mines.
Jurors are now on lunch.
We are now back from lunch.
A development in the FBI 302 (witness summary) that disbarred attorney John Moseley threatened to publish today.
It was the FBI witness statement from U.S. Capitol Police Officer Harry Dunn, a possible witness for the trial in the weeks ahead.
Per WUSA9 reporter Jordan Fischer, this was a tactic Moseley attempted when he was still representing defendant Kelly Meggs but it didn’t get very far and it would seem, after a threat by Judge Mehta to hold Moseley in contempt, it won’t get very far today.
We’re back from lunch. We begin with the cross-examination of government witness John Zimmerman by John Crisp, the attorney for Oath Keeper defendant Jessica Watkins.
Crisp begins by asking Zimmerman if he was on the Nov. 9 2020 GoTo meeting hosted by Rhodes. He was.
Crisp gets Zimmerman to say, again, he felt the Oath Keepers were more disorganized than the military. (Zimmerman is a vet)
Defense has Zimmerman establish that if there was dissent among members of the Oath Keepers or just because Rhodes said something, it didn’t mean you had to do it.
Zimmerman told the court, “correct, but there are obvious limitations.”
If Rhodes says go to an event for X-reason, you go to the event for X-reason, he sums up. But if Rhodes said “shoot your foot off, you wouldn’t do it,” he said.
What if Rhodes ordered him to attack the Capitol? Would he?
“No,” Zimmerman said.
When asked if he liked Rhodes still, Zimmerman said he did not but “as a Christian” he is taught to “love god and love people.”
“I love Stewart Rhodes and Jessica. But I don’t like what they did,”
When he said this, both the defense and the judge had him clarify that he did not have any personal knowledge of what Oath Keepers did or didn’t do related to the charges tied to Jan. 6. He was saying he did not like what they did in November for the Million MAGA March and this is why he is here today to testify. By the time Jan. 6 had rolled around, Zimmerman had divided himself from the national Oath Keepers network.
I reached out to Tasha Adams, the estranged wife of Elmer Stewart Rhodes, and asked her for her thoughts about what the nation is seeing unfold in this trial today and what she thinks Rhodes makes of his current predicament.
Adams told Daily Kos on Thursday:
“I think the prosecution is doing a fantastic job, just destroying the defense line by line. Stewart, however, likely sees it very differently.
I think he sees this all as smoke and mirrors and that when he gets up there, he’s going to straighten it all out for that poor, confused jury.
He thinks he’ll show them that he’s a good guy, with noble intentions, and that everything he did was strictly legal, patriotic even.
I believe Stewart is incapable of self doubt. The closest thing he could have to doubt would be if maybe he sees an even larger moment in time as his great ,”meant to be”. He might wonder if he is destined to receive a pardon later.
So if he does start to get nervous with the prosecution’s absolute destruction of his case, he’ll imagine it’s only because something even greater is coming for him,” she said.
Next witness is called after Zimmerman leaves the stand and his name is Abdullah Rashid.
Rashid was responsible for recording the Nov. 9 GoTo Meeting where Rhodes is accused of rallying more than 100 members to descend on Washington for Jan. 6 to stop the transfer of power.
Testifying before jurors Thursday, Rashid said he recorded the call because it sounded “scary” and because it seemed like they were going to “go to war against the U.S. government.”
There were threats to fight with antifa and BLM, he says, but it was also about getting weapons to Washington for something bigger and it went above the typical pro-Trump, anti-Biden rhetoric.
Under cross, Rhodes attorney James Lee Bright asks Rashid if he is the leader of an Oath Keeper division.
Rashid says he is the leader of the West Virginia Chapter.
An attorney for Kelly Meggs, Stanley Woodward now questioning Rashid about the time he contacted the US Cap Police.
In that message he wrote that Rhodes is “freaking wacko that the Oath Keepers would be much better without.”
Under cross from Watkins attorney Jonathan Crisp, we now learn that Rashid has pleaded guilty to aggravated sexual assault of a child in the past.
Watkins attorney had no further questions.
Under questioning from Oath Keeper Jessica Watkins attorney, we learn that Rashid—the man who recorded the Oath Keepers Nov. 9 mtg—has previously pleaded guilty to aggravated sexual assault of a child.
An attorney for Kelly Meggs, Stanley Woodward questioned witness Rashid about the time he contacted the US Cap Police after the Nov 9 call. In that message, Rashid told USCP that Rhodes is “freaking wacko that the Oath Keepers would be much better without.”
Back under redirect from prosecutor Rakoczy, Rashid says he started recording the call about 13 minutes in and then for the next 30 minutes.
“It felt like we were going to war with the US government, antifa and BLM and I didn’t like it,” Rashid says again under redirect from Rakoczy about the Nov 9 call.
Earlier we learned that Rashid has changed his name several times, at least six times.
On redirect, prosecutors ask him why he had his name changed again before he testified?
Rashid says even now, he reads Oath Keeper chats where the “general concept” is “snitches get stitches.”
“I don’t want my wife to have stitches, you know?” he says before leaving the stand.
Next up we have witness for prosecution Michael Adams of Florida. He joined the Oath Keepers roughly a decade ago. Went to the website, signed up and “was directed into a chat” for would-be members/members in Florida.
From the stand, Michael Adams is describing how he aligned with the Oath Keepers first in 2012. The Florida division was disjointed, he testified and they wanted to flesh out the state’s chapter with volunteers who could make it more official.
The chat function for the Oath Keepers Florida page was unsecure, Adams testified but that wasn’t his primary concern at the start of his membership. He was mostly worried about Oath Keepers from states outside Florida would get in.
Eventually they migrated off that website chat onto encrypted chats like Signal. Adams set up a channel just for Oath Keepers from Florida and later they would hold a GoTo Meeting every Monday.
Adams begins describing the time period right after the 2020 election and says that the purpose of the Oath Keeper GoTo Meeting from Nov. 9, 2020, was to go to Washington as part of the ‘Stop the Steal’ movement and provide security.
In November, Adams says some of the Oath Keepers went in (Million MAGA March) but he did not. In December, he says: “I found myself questioning whether I needed to be a member of the organization.”
Adams describes why he felt out of place with Oath Keepers in Dec. 2020: With the rhetoric going on and the fact that Rhodes wrote two open letters to Trump suggesting the election was stolen, called for Trump to invoke the Insurrection Act, that was all a bit much for Adams