Day 25 of Oath Keepers Trial - Nov 10
Mehta takes stand at 11:07am . . .
“Debated whether I wonted to wear the robe or not, but realized I needed it for warmth.” (Laughter. Most everyone is dressed casually today.)
***NOTE: This is going to be a day of extremely esoteric legal discussion, with a lot of case law references. I doubt I will have the personal capacity to effectively communicate these effectively for the few ‘legal beagles’ who might be tracking me today . . . but I’ll do my best to hit the highlights” . . . as I perceive them to actual BE “highlights.”
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No witnesses today. No jury. This will basically be an ‘argument’ between sides about the contents of the jury’s final instructions before going into deliberation. (Now expected to be on the Thursday or Friday before Thanksgiving break, or maybe even after Thanksgiving.)
Mehta explains he is working off a clean version of the government’s stated desires for today’s hearing on “Jury Instructions.”
Nestler brings up issues about not discussing “grenades” or Caldwell’s firearms following event. Mehta reminds that he had already ruled on those issues.
Debate immediately goes to language regarding their “legal” possession of firearms. No defendant is accused of illegal transport, possession, or use of firearms, but it can be considered that they may have had intention of using those in the furtherance of the conspiracy. (Highly paraphrased.)
AUSA Nestler does NOT want the jury instructed that the defendants ARE NOT charged with gun crimes, that the jury should only hear what their actual charges are. “They’re not charged with gun crimes, so jury shouldn’t be told what defendants ‘are not’ charged with.” (In other words, Nestler wants to leave that ‘insinuation’ hanging.)
Mehta also does not want any 2nd Amendment debate infused into this case or jury instructions. Nestler feels that if Mehta instructs jury that NO GUN CRIMES are alleged - (just the possible thought crime) - then this brings the 2nd Amendment into play.
Fischer surprisingly says the defense teams concur that they do not wish to instruct jury about anything related to gun crimes - charged or not.
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The debate now is over the inclusion of words defining that a conspiracy can be “spoken or unspoken” . . . “explicit or implicit.” (You can imagine which side wants which words included and excluded.) Nestler also wants even more language, , but Mehta says he thinks that’s a little “heavy-handed.”
Mehta says he’s going to leave it only as “explicit or implicit,” and that attorneys can then make their closing arguments based off those words.
Question turns to language explaining that the ‘successful accomplishment or failure of the conspiracy’ does not affect whether or not a conspiracy exists.
Now we get to the definition of “seditious conspiracy.” Mehta proposes that they skip over this issue, for another day . . .
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Unanimity of instructions with regards to “conspiracy” is being argued along obvious lines. Government wants much broader definition, while defense wants more narrow definition.
The individual defendants can be in disagreement of ‘plans’ and some can also be ‘unaware’ of certain plans, and still be guilty of entering into a conspiracy.
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***NOTE . . . it’s already becoming painfully aware that the best order of the day is for me to acquire and publish the entire transcript from today, and spend my time giving a synopsis of the highlights directly from the court transcript, rather than trying to keep up with the fast-paced debate on so many references to conflicting case precedents, and the various interpretations thereof by judge, defense, and government.***
That said . . . I will continue to tweet what I deem might be the most important highlights. (Hopefully a fistfight between Nestler and . . . well . . . anyone.)
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Many arguments of the various conspiracy definitions to be included in jury instructions are tabled pending further submissions of case law from both sides.
Mehta wishes to avoid separate instructions for “individual defendants.” (Well, hell . . . there SHOULD HAVE BEEN separate TRIALS for most of THESE defendants.)
“Mistake of Law” is brought up by Crisp, but Mehta is hesitant to allow for that. Crisp brings up specific case law to argue for bringing it in. (NOTE: I think this is a HUGE issue for all defendants apart from Rhodes, and needs to be admitted.) Mehta will wait for further proposals on this.
Seems discussion of ‘jury instructions’ is done for the day, as they move into other issues.
Nestler wants Geyer to make final submission of potential witnesses by end of day tomorrow. Parties agree.
Government argues that they want to present to jury that Rhodes and Harrelson have not filed taxes from several prior years. Gov believes this undermines the concept of their alleged “patriotism.” Mehta seems hesitant to allow this, but will take further comments before deciding.
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Back to instructions . . .
Fischer makes the case that jury must be aware that some conspiracy wasn’t suddenly hatched only 15 minutes before they entered the Capitol - that the government must prove this was a long term conspiracy developed over several weeks. Nestler says he thinks it highly appropriate to present the idea of a ‘last-minute’ conspiracy.
Fischer says the grand jury indictment specifically states a “plot” to prevent the certification of the vote, and not a “last-second” plot that took place on the steps in the Capitol. Nestler once again states he thinks it wholly appropriate it could have happened on the steps, and that’s an argument for the jury to decide . . . that it doesn’t matter when any individual defendant finally “joined” the conspiracy. Could have been weeks prior to J6, or in the moments before they entered the Capitol.
This is one of the most important debates taking place today . . . finally a little PASSION in the room . . . and many of the defense attorneys are not audible in their arguments, so we’re missing much of hat’s happening. That said, Mehta is not showing any favor toward the defense argument that this was a “long brewing plot,” and not something that suddenly materialized “on the steps of the Capitol.” (Obviously, this is huge to someone like Harrelson, who had no participation in any prior chats, planning, etc.)
Mehta, again, is showing no inclination to accept Fischer’s argument that both the grand jury indictment and the government’s case is that this was an overarching conspiracy dating back to many weeks prior to J6. Mehta is trying to get them to accept a more narrow instruction on dates, from “On or about Dec. 20, 2020, to January 20 of 2021.” Nestler stands on legitimacy of “last minute” entry into conspiracy, while Fischer points out Government has presented evidence going back many months. Mehta finally pushes this back on them to come to an agreement if they can, and he’ll decide later.
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Some discussion about upcoming defense witnesses which Government believes are irrelevant to this case. (Again, we’re missing much off-mic argument. Seems important. You’ll have to wait until I get the transcript.)
Juror 16 - who is moving to Texas next week - and may be unable to find a place to stay here in DC til conclusion of trial . . . has not heard back yet about Court funds being available to put her up for the remains weeks of trial.
There’s also the question, if someone moves to another jurisdiction during a trial, is she still legally able to continue as a resident of another jurisdiction. Mehta: “Unless defense is willing to waive . . . ?” Defers discussion until Monday.
Mehta is expecting two days worth of closely arguments - including rebuttal - and says he “Hopes no more than two days.” (More off mic responses. Some laughter. Inaudible.)
“If we finish next week, I’d like to give this to the jury the week after [Thanksgiving].”
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NOTE: Defendants are not in the courtroom today . . . apparently by their own choice . . . and Mehta is asking for written waivers from each of them.
It seems all the lawyer table mics have been turned off. We can no longer hear anything they are saying. We still hear Mehta’s responses, but not the context of what he’s responding to.
Mr Linder comes forward to state that since they have rested Rhodes’ case, he moves for acquittal. Mehta kinda chuckles and says “I’m sure the government is going to be opposed to that, but you can have that discussion between yourselves.”
Court stands in recess at 1:07pm . . . until Monday morning.
