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Day 18 of Oath Keepers Trial - Nov 1
Mehta takes the bench at 9:19am . . . addresses objections regarding exhibits.
Fischer comes forward to discuss the stolen riot shield that is to be presented, implicating Caldwell as being “complicit” in that event. Fischer has presented a video, previously, which shows by timestamp, Caldwell and his wife having already left the area before that episode happened. Nestler shows the Court they have video on Caldwell actually saying, “We stole the cop’s riot shield.” Fischer returns to discuss the use of the word “we.” (I suppose it depends on the definition of “we.” BTW . . . did we ever get a clear definition of what the meaning of “is” is?) Mehta is going to allow a photo of the shield, but not the video of what was happening inside the west tunnel battle. (No OKs were involved in that battle.) Mehta admits the use of that video is prejudicial. (He could have fairly and consistently made that ruling 100 other times in this trial.) There is another video Fischer objects to, which the government intends to present, showing a synched video of Caldwell’s arrival to the west side of the Capitol as certain violence was beginning.
***Side note: I actually bumped into Mr. Caldwell this morning as we were going through security screening. He asked me if I had seen the whole trial. (Indeed, I have.) He then asked me, “How did this whole thing suddenly become about me? I’m not even an Oath Keeper, wasn’t with the other guys that day, and didn’t go inside the building?” (I didn’t offer an answer.)
Fischer has additional objections to certain Facebook messages to be presented today. They are going through those, but we can’t see them until they are actually cleared by Mehta to be introduced into evidence. As is typical, Mehta gave Fischer his one small bone today, but the rest is mostly going the government’s way.
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Mehta is getting a bit impatient, ready to get the jury seated, and asked if they can address more of the objections during lunch. (Yes.) Juli Haller also came forward to object to another message by Mrs. Meggs. This particular time Mehta repeated a previous line, “You can’t unring the bell of what your clients have previously said.”
More comments from Rhode’s team, from back of room and off mic . . . <inaudible> . . . We didn’t hear, but Mehta responds that it’s not an argument for inadmissibility. Nestler argues against that which we didn’t hear.
Now Crisp comes forward to support previous arguments against certain videos.
Jury finally seated at 9:53am . . .
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Government calls FBI Special Agent Kelsey Harris - returning to stand. (Appearing in place of Agent Whitney Drew who had scheduling conflict.)
AUSA Nestler shows photo of Harrelson exiting east doors of Capitol. Another photo of Harrelson being spoken to by Meggs on Capitol steps. (He didn’t go anywhere with those photos, but the 2nd one was really cool. I’ve not seen that one before.)
Nestler now shifts to Facebook messages taken from Thomas Caldwell’s account in which various brazen rah-rah chats are taking place on the day of J6.
Nestler is literally just reading these inflammatory FB messages to the court. Agent Harris just sitting there listening, until an actual Caldwell response comes up, then Harris reads Caldwell’s specific messages. Most of these messages TO Caldwell are coming from OKs not at the Capitol. Almost all of the messages FROM Caldwell are those braggadocios “WE did this sh-t” kind of messages, which of course Caldwell and his wife aren’t actually physically capable of doing. They obviously watched. Obviously cheered it on. Obviously were exuberant about what they were seeing. But in all his responses back to the OKs at home on their sofas, Caldwell was taking credit for being IN the battle . . . even though he wasn’t. (Probably wanted to be, but his age and health would no longer allow that.)
We’re now seeing videos of the west side of Capitol crowd and battle scenes. Caldwell is shown in one still photo, exuberantly waving an arm. Now they are showing that photo of the west tunnel scene (which Mehta earlier approved) showing a riot shield taken from officers. The government is making the insinuation that Caldwell somehow directed the stealing of that riot shield from his position far back in the crowd to the rioters inside the tunnel. (Seriously. I’m not kidding.)
<sidebar called by Mehta>
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Long sidebar concludes with Nestler shifting back to more Facebook messages. Literal and figurative messages from OKs expressing their desire for bombs, bullets, gas, etc. to take out the Capitol and all its occupants . . . from guys at home sitting on their sofas watching the event on TV. Those guys are obviously more informed about what’s happening - from TV - than is Caldwell on scene.
Now they are showing a sequence of several messages in which Caldwell had later “UNSENT” the messages, which the FBI were unable to recover.
*NOTE: What have we learned from these proceedings, kids? The feds can recover virtually everything we talk about except an “UNSENT” Facebook Messenger message. (At least that was the case back in January of 2021. I’ll bet Zuckerberg’s been instructed since to make that change.)
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I now have to step out of courtroom for my weekly appearance on TNN Live. You can listen here at top of the hour (11am-ET):
https://www.elasticplayer.xyz/truthnews/
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Back from radio interview . . .
More Signal chat messages between OKs, in the hours following their time at the Capitol.
Mehta calls morning break at 11:36am
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Mehta returns to bench at 11:53am . . . jury back at 11:55 . . .
Nestler now presenting MPD bodycam videos into evidence, additional photos, and video from “Simon.”
Direct of Agent Harris continues with more message and photo extractions from phones . . . Signal messages. These are more messages now from following morning, J7, in which Ed Vallejo messages early the next morning talking about doing “recon” on Capitol to assess defenses there. Then a status report on National Guard having cordoned off entire Capitol grounds. Vallejo’s messages are basically filled with “it’s not over,” “we’re at war” type lingo.
Signal from Harrelson asking “where’s my shit at, since it seems everyone’s left us.” (A bunch of messages from guys getting ready to leave town.)
Back to messages fromJ6 . . . Caldwell: “Sharon and I assaulted the Capitol.”
From Watkins: hyperbolic rhetoric about storming capitol, house, senate, and fighting back cops like “spartans.”
Meggs: “We busted in.”
Meggs: “We looked for her.” (Pelosi)
Watkins (Parler post): “We stormed the Capitol today . . . “
Caldwell: “If we’d had guns, I guarantee we’d have killed 100 politicians.”
We’re seeing more messages we’ve already seen presented in previous days of trial.
——
This is just a relentless, rapid-fire presentation of inflammatory OK messages recovered by FBI from various chat and messages platforms. Many of these we’ve seen before, from J6 and after.
Now showing more videos of or made by Caldwell, engaging in inflammatory language.
No further questions . . .
<sidebar>
NOTE: As I’ve shared in previous weeks of this trial, Watkins and Caldwell are their own worst enemies, having both engaged in grossly hyperbolic language, and usually about actions they didn’t actually engage in. Braggadocios bravado for those OKs back home watching on TV. Way too much fuel for this fire.
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Mehta dismisses jury and witness for lunch, and asked the attorneys to have a seat. Mehta is reviewing statements, primarily from Watkins and Caldwell, objected to by defense for submission into evidence, dealing with their alleged actions during J6. Haller argues they look bad enough as they are, but they are being put together by the government out of context, and to other people outside the conspiracy. (For instance, Caldwell brags about “being inside the Capitol,” when in fact he was not.) Mehta is simply not having any part of Haller’s arguments. He instructs her the defendants can take the stand and explain themselves if they wish, or she can present other exculpatory statements that put these in better context. Bottom line . . . these messages are coming into evidence.
Mehta releases everyone for lunch at 12:42pm
——
Court back in session at 1:28pm . . .
Crisp comes forward to present two case precedents that ‘making a statement they know is not true - exposing themselves to criminal liability - if they don’t know they are exposing themselves in braggadocio, untrue statements, it goes against penal interests.
Nestler says Crisp is wrong, that because these statements corroborate the defendant’s untrustworthiness, they are admissible. Mehta acknowledges both Caldwell and Watkins make statements about their actions not borne out in truth, but Nestler says they did “storm the Capitol” because they were one the grounds itself, and that the statements corroborate actions by others in the conspiracy.
Haller adds to Crisp, that the rule is narrow and the statement itself needs to have culpability in having made it in such a manner they actually believe it is true.
Mehta: “If you’re arguing that the statement doesn’t come in at all . . . that’s not going to happen.” But understands it may incriminate other individuals not involved in those statements. (In other words, they will come in.) Mehta says that he is going to take time to look at this more closely, and requests Crisp to send him his notes. “it’s important enough that I want to spend appropriate time on this.”
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Fischer asks the government to pull up a Facebook message in which there’s no context or identified sender. Believes the Court had previously ruled against it, while the government disagrees. Mehta can’t remember either . . . considering the overwhelming number of such messages presented. Mehta thinks it does go to state of mind.
Fischer addresses another message from Caldwell which is just an off-color joke, and has no context to the event itself. Mehta allows that joke to be removed. Fischer presents another message which is a screenshot of an article sent to Caldwell - something about an explosive device - but Caldwell deleted his own response. (Not sent from a co-conspirator.) Mehta agrees to keep it out.
(Two small bones to defense. Mehta knows they are so light as to not tip the scale either direction. Mehta even admits that. “The government can make their point in other ways.”)
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Yet more messages argued against - from non co-conspirator - with UNSENT responses by Caldwell, (which they can’t see.) Another off-color joke from Caldwell. Government volunteers to redact portions of the joke. (Well . . . damn. Now we won’t get the joke!) A couple more, similar messages objected to by Fischer. Images of Justice Roberts and Epstein. (Memes?) Mehta will allow.
Fischer now argues that certain individuals “on the board” of government’s presentation of individuals directly or indirectly involved have not been charged with crimes, and asks for limine instruction for jury. Mehta agrees.
Haller returns to show Mehta seven slides to which she objects, due to lack of context and fact Meggs shows his lack of understanding of the law. Mehta reviews . . . and tells her this DOES show his state of mind regarding the conspiracy itself. Basically, he presses her to prove, based on federal rules of evidence why they shouldn’t be allowed.
Mehta again pushes this back for a late discussion, as he wants to bring the jury back in.
Jury seated at 2:08pm
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Fischer - for Caldwell - begins cross of Agent Harris. First questions are about Harris’ awareness of Caldwell’s heath conditions. Nestler objects, twice - overruled both times.
Fischer begins reviewing message and photo slides presented by government, attempting to put them in different context than as presented by government. Most of these are actually hyperbolic comments made by people not in DC, and not responded to by Caldwell. Harris agrees that’s the case.
More messages, this time from Caldwell, in which he couldn’t have actually been DOING the actions he took credit for, as he either didn’t do those things, or wasn’t even in the area where those things were done - despite Caldwell’s use of the word “WE” when taking credit for these actions.
More highly inflammatory, distasteful slides in which Harris confirms the messages are sent to Caldwell from people not even in DC. More questions where Harris is forced to admit he’s never actually investigated Caldwell or even read the transcripts of those agents who did interview him.
Fischer has Harris read a couple of Caldwell’s most inflammatory messages. Attempts to get Harris to agree that Caldwell didn’t actually do those things. Harris says he doesn’t think they have attempted to prove Caldwell actually did any of those things.
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Fischer replays government video leading up to where Caldwell was shown raising his arm in the air, and has Harris agree Caldwell is not assaulting any law enforcement or had no part in stealing the police riot shield. Harris agrees that he has no knowledge of Caldwell assaulting any LEO.
Fischer plays video where Caldwell is heard to say “Let’s go. Let’s Go,” and his wife says “Okay,” at about 2:53pm… (after Caldwell says that “Today I’m going to wipe my ass on Pelosi’s doorknob.” They obviously did not go to Pelosi’s office, (never went inside Capitol), and instead meant, let’s “leave.” Harris can neither confirm or deny that they left the area, as he’s not seen any video of them thereafter.
No further questions . . .
Bright - for Rhodes - takes over cross. Immediately asks how long Harris has been on the J6 investigation, and states he is most familiar with Harrelson and Meggs’ cases, as he first began work on their cases while in Florida . . . but has been in DC since August.
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Harris agrees that OKs Stack 1 and Stack 2 had no contact with each other inside the Capitol, and confirms timelines of west and east side breaches of Capitol. Now presenting Rhodes’ Signal chats stating his personal location at various times in and around the breaches of the Capitol, sent to the other OKs. Bright asks Harris to confirm how many OKs were at the Capitol, and that the groups were split up on various assignments. (Agreed.)
Trying to get Harris to agree that Rhodes’ communications are attempting to get the various groups of OKs to meet up with him - both those who were not in Capitol and those who weren’t. Then produces a slide where Rhodes requests anyone “not tasked with a security detail” to come to his location on Supreme Court side of Capitol. Rhodes continues sending Signal chats about his location, and requests they join him at his location.
Harris agrees he had never seen from any of the OKs communications they ever had a preset meeting place after the assignments. He also agrees the OKs never returned to the Capitol building after they were gathered together, and that they had exited DC before curfew implementation, and certainly long before the public was notified Congress was returning to Capitol. Harris acknowledges that there is no evidence of OKs doing anything illegal or untoward after leaving the Capitol. Harris agrees he’s never seen any order from Rhodes for OKs to enter Capitol. Harris agrees he has never seen a specific PLAN of action given to the OKs - from Rhodes or otherwise - about what they were to do that day.
No further questions . . .
Mehta calls sidebar . . .
Mehta calls for afternoon break at 3:09.
——
Everyone, including jury is back in courtroom, but we are still being blasted with whitenoise in media room.
We see next witness sworn in and beginning direct from government, but we can’t hear a thing.
We SEE a sidebar being called . . .
Whitenoise stopped when they leave sidebar . . .
——
From the questioning, we now know this is the witness from Facebook/Meta to discuss the interesting aspect of the “Unsent” messages.
No time limit on when a user can UNSEND a message.
Facebook can only review UNSENT messages for 14 days, then it is gone. Facebook only retains DELETED messages after a “preservation request” is received from law enforcement.
Now we’re descending into the technical details of what all the coding means in relation to how data is harvested and sent to law enforcement, from FB.
——
Gov now has META guys actually reading some of these FB messages from people never at Capitol, messaging Caldwell. <eye roll> Then, acknowledging which of Caldwell’s return comments have been UNSENT. These are GROUP Messenger chats, in a group started by Caldwell, and he’s just reading message after message from non-defendants, non-OKs, and individuals not in DC on J6. (Seriously . . . I don’t get the point. FB techs can read?)
——
Now being asked about dates and how many messages were UNSENT on various dates. (179 of Caldwells messages UNSENT on January 15th)
<sidebar called>
Mehta returns to instruct jury those other group participants in those chats were read only to provide CONTEXT in relation to the UNSENT messages, but not the TRUTH of those statements.
Now showing photos and memes that were sent in the Messenger group. META guy now reading messages accompanying those photos . . . which we have already heard read by FBI agents previously. But, this time, we get to hear them read by a FB nerd who can then also tell us which of those had responses from Caldwell that are unreadable because they are UNSENT.
No further questions . . .
——
Fischer - for Caldwell - begins cross. Begins by having FB nerd clarify for record the difference between a FB Page and FB Messenger.
UNSEND use to have a 10-minute time limit, but FB Nerd can’t recall when either Messenger went into operation, or when the 10-minute time limit was changed. Fischer is a bit indignant that he doesn’t know. Asks how long he’s worked for FB: (Since May of ’18)
Fischer asks for sidebar . . .
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Clarifying the 10-minute limit . . . one use to have actually hit “unsend” within 10 minutes for it to disappear. Fischer gets FB Nerd to clarify that his knowledge of this function is outside his job scope, and he simply doesn’t understand when the changes were implemented.
Fischer asks for another sidebar . . .
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Fischer asks, when deleting a record from FB, does FB inform user or provide a message that any such selection or UNSEND is a ‘permanent deletion’ from the company itself.
Fischer trying to get FB Nerd to clarify how or if everyone in Group gets message from other Group participants. FB Nerd has no way of knowing whether or not each member of Group actually gets the message.
Now Fischer has FB Nerd reading what are more favorable messages from that FB Group. (Turnabout is fair play, I suppose.)
No further questions . . .
No other crosses . . .
Gov redirected begins of FB Nerd.
——
Asked to read one more message and confirm the response was UNSENT.
No more questions.
Mehta dismisses the FB Nerd. (Hey . . . we didn’t hear his name . . . and FB is my favorite target . . . soooooo . . . )
——
FBI Agent returns to stand for continueance of cross exam. Haller - for Meggs - begins cross. She has awkward time getting Harris to confirm which “Kelly” was mentioned in Rhodes’ group chat. “Kellye” Sorrell, or “Kelly” Meggs. Agent responds that considering Rhodes and Sorrell had a romantic relationship, Rhodes likely knew the correct spelling of her name.
Haller tries to get Harris to confirm times of exit from building by members of Stack 1, and what timestamps or any were on photos taken of them outside.
Harris has no knowledge of what text messages between Rhodes and Meggs were either delivered or not on J6. He’s only familiar with the Signal messages.
Haller gets an objection and then just starts arguing directly with Nestler. Mehta: “if you all would like to continue the conversation . . .” and then held up the phone signaling a call to sidebar.
(At least Haller is running out the clock on the day.)
Harris is familiar with OK FL DC OP Jan6 chat on Signal, but has never seen the document Haller is trying to get put into evidence. (She is so flustered by Mehta . . . . and this time Mehta is being very patient with her.)
——
Harris is unfamiliar with any text messages between Meggs and other OKs or VIPS for which they were doing PSDs. Harris is being asked a series of questions about the scope of his investigations, in which Mehta interjects that her questions are actually “outside of scope.”
Haller continues in a series of questions in which Harris acknowledges Meggs didn’t do any of the typical bad stuff . . .
No more questions . . .
Mehta dimisses jury at 4:59pm
(Harris will be back again tomorrow.)
Nestler says Gov should be able to REST tomorrow, after finishing with Harris and three more short witnesses. Mehta is asking about expected times of crosses tomorrow.
——
Linder is asking if defense can make all motions on Thursday, and begin Opening for defense on Friday. Mehta laughs . . . and says he wants Reserved openings ready on Thursday morning, and they can argue motions Friday afternoon, after jury is dismissed. Witness scheduling challenges for defense discussed. Mehta is open to allowing various defense witnesses get juggled.
Mehta says he has never had defense defer opening in this manner, and DOES NOT WANT to hear them criticizing the government’s Case in Chief on opening. (Hmmmm.)
——
Mehta goes back to previous evidence objections by Fischer - dealing with previous testimony and allegations by gov in his trial regarding PSDs, previous marches, and implications made throughout trial that previous events were “practice runs” or “recons” or “dry runs” by other defendants not in this trial - for the purpose of J6 planning - from their Grand Jury hearing. Very confusing debate proceeds, and even Mehta feels he needs more review himself.
Another request by Fischer for admission of a transcript from a detention hearing was made inaccurately due to a mistake made by an AUSA. Mehta is allowing presentation of this information on a limited basis. Again, confusing considering we don’t have access to the transcript the attorneys are arguing over.
——
There are more objections and - quite serious, and quite esoteric rule problems being debated by attorneys. He agains says he will consider them over night.
Mehta dismisses everyone at 5:32pm.