Day 28 of Oath Keepers Trial - Nov 16
Early start today, with Judge Mehta having gathered the lawyers and defendants early, to complete the Jury Instruction debate before bringing the jury in for final presentation of defense witnesses.
Without getting into the details of this morning’s arguments, as they flow forth on the media room’s TV screens . . . I’ll just relay again, what I think is the final schedule as we approach the end of this trial . . .
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As I said, it appears the defense will complete its case this morning. Mind-numbingly fast, considering the government took most of five weeks to present their case. But, really . . . how much time do you actually need to build a defense against “scary words” when you can’t even argue that on 1st Amendment grounds, but must be framed as a defense against multiple conspiracy charges?
Scary Words vs. No Scary Deeds . . . the crux of trial.
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Jury seated at 9:06am . . . also earlier than normal.
Mehta begins by presenting what he hopes will be the flow of today’s events.
If all goes well, defense will rest, government will give their closing argument, and Mehta will give the jury their final instructions today. With most if not all closing arguments, tomorrow, and into Friday morning.
Caldwell takes the stand for the conclusion of his redirect from attorney Fischer. Begins by clarifying that some of those scarier words from he and wife were quotes from movies and cartoons.
“Have you ever before been arrested or charged with a crime?” . . . No sir.
Attempts to present a new document into evidence immediately met with two fierce objections from government, and . . .
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After long sidebar, the document was allowed to be admitted, with numerous redactions.
It’s an excerpt from grand jury transcript, which shows he has no criminal history, but maintains he has a “leadership position with the Oath Keepers.”
“Have you ever held a leadership position with the Oath Keepers?” . . . No sir.
“Have you ever been a member of the Oath Keepers?” . . . No sir.
“Did you ever observe any violence while in DC?” . . .No. I do so swear.
“Did you carry a gun into DC?” . . . No sir.
Then a series of questions emphasizing the fact the government never presented any videos or evidence of him doing any violence, barricade breaches, assaults on LEOs, property damages, etc. Mehta interrupts and tells Fischer that the “jury gets the point. let’s move along.”
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Fischer takes him through a series of questions about Caldwell’s return to the hotel room on the afternoon of the 6th, taking his meds and adult beverages, going to bed, and then not learning that any of the OKs had entered the Capitol until the next morning at breakfast, where Jessica Watkins showed him her own videos from inside the Capitol Building.
Further review of mutiple FB and Signal messages which put government’s presentations into greater context - particularly how the mythical “QRF boat” would be used to ferry people who might need medical evacuation could be more readily evacuated should the need arise.
Caldwell acknowledges that he and wife consented to a voluntary interview and search of property by FBI, and that he voluntarily gave them passwords to his devices, and signed consent forms for all those actions.
Fischer takes Caldwell through a series of questions explaining the post-J6 visit by Watkins and Crowl - that they were not “harboring fugitives,” and that they went into public places on multiple occasions, including to hardware store to buy paint and supplies, where they painted the Caldwell barn while they were there. No one was hiding. Once they’d learned of the FBI’s interest in Watkins, Caldwell advised them to go home to OH. Multiple objections from government during this line of questions. (Hearsay . . . all sustained.)
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More questions addressing the “unsent” FB messages. More objections. Back to same line of questions about FB messages. Caldwell claims once again that they’d already made the decision to begin eliminating their facebook histories long before J6, and that post J6 - and before arrest - he was just continuing that process. (“As you know, if you read the FB agreement, everything you have posted there becomes their property, and we just didn’t want that.”)
Caldwell often offers comments to questions past the simple “yes” or “no” required, drawing objections from government. (It’s part of Caldwell’s personality - like it or not.) It’s also not uncommon for those objections to precede the completion of Fischer’s actual question, and Metha has to tell them to “wait for the question to be asked.” Mehta also has to instruct Caldwell to “wait on the ruling of the objection before answering” more than once. Part of this is because Fischer is flying through this “clean-up” redirect, trying to get to as many points as possible. The rapid pace also creates naturally rapid responses - even over an objection. Caldwell likes to talk, and Fischer’s moving fast . . . this is just going to happen. But Mehta doesn’t like it.
Fischer continues to fly through a long series of messages and J6 photos Caldwells sent to various friends during and following J6, which were never deleted from devices, or hidden, and also freely supplied to the FBI. All this to counter the government’s allegation that Caldwell tried to hide his activities and words related to J6.
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“Did you ever have intention to obstruct justice with the FBI or Grand Jury?” . . . No sir.
“Did you ever attempt to hide evidence from the FBI.” . . . No sir.
“Did you attempt to resist arrest when the FBI came?” . . . No sir.
Then Caldwell is allowed to describe in detail his early morning arrest: wakened by bull horns and bright lights, armored vehicles, automatic weapons, in his underwear, force to ground, wife in nightshirt with hands in the air, red dots on chest . . . Caldwell breaks down on stand, and says he remembers thinking/praying, “please don’t let them murder my wife - she’s so innocent - please don’t let them murder my wife.”
(Some in media room begin chuckling.)
No further questions . . .
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Crisp - for Watkins - calls Jennifer King(?), a senior forensic examiner for the FBI. Moving to admit her as an “expert in digital forensic extractions.” (No objections.) Begins the process of describing how data is extracted to assist in their agent’s investigations.
Begins showing a “summary of call detail records” (CDR) extracted from Watkins’ phone. Begins to focus on a series of call records on J6 between Watkins and Caldwell. When asked for her to compare the same calls from Caldwell’s “CDR” . . . objection! . . . . . . objection overruled.
Crisp is attempting to show and explain the discrepancies between Watkins’ and Caldwell’s CDRs - as the government has previously insinuated that calls between Watkins and Caldwell on J6 were to be construed as evidence that ‘orders and planning’ of the “assault” on the Capitol were taking place.
Crisp has taken a laborious route to begin showing that the calls alleged to have been “orders and conspiratorial planning” were in fact “missed calls” between the users.
Mehta calls for morning break at 10:30am . . .
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Mehta back on stand at 10:47am . . . jury reseated . . .
Crisp continues direct of Ms. King . . . shows detail records of five specific Signal chats on Watkins’ phone . . . and she explains she was directed to make the connections between her device and those of other members of the group. (Rhodes, Sorrel, Greene… DC OP J6 group.)
She explains the discrepancies of send and receive times can result from phone being in airplane mode, app being turned off, notifications turned off, and network overload. At least four reasons explaining differences in ’send’ and ‘receive’ times on the various defendants’ message and call logs.
Crisp now begins showing long list of message logs which show send and receive discrepancies of as long 2 to 3 hours . . . with the most likely explanation being the result of network overload during those hours on the afternoon of J6. Data shows their apps were turned on, but messages not delivered until hours later.
No further questions . . .
Haller - for Meggs - begins defense cross of King . . . she confirms she did also extract and work on “Old Leadership” signal chat. Confirms that Meggs had no messages after Dec. 18., then from other OK chat groups, last messages taking place from Jan7 to Jan20 of 2021.
No more questions . . .
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AUSA Rakoczy begins prosecution cross . . . begins asking questions about which types of records can and cannot be deleted - including certain apps (like Signal) which phone companies would have no record of. (Implying that defendants could have used and then deleted messages and calls from other types of apps . . . though no such evidence has ever been presented.)
Basic gist of Rakoczy’s cross is to have King point out certain messages that did mange to penetrate the network overload, and be delivered. (No actual “scary words” messages, just those from Rhodes telling where OKs to meet outside of Capitol.) Possibility that Greene didn’t receive certain messages because he simply had the app turned off.
More questions about data from other defendants phones, specifically Meggs, with insinuations he may have deleted data related to Signal app. No proof, either way.
No further questions…
Crisp begins redirect… and begins methodically reviewing whether or not it can be known why certain messages and calls can’t be delivered on time, etc. etc.
No further questions . . .
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SHOCK MOMENT:
Crisp calls Jessica Watkins to the stand . . . (and the media room gasped aloud) . . . Crisp informs the Court “this may take awhile. “Do you want to break for lunch before we begin?” Mehta seems shocked, and immediately calls sidebar. When he returns from sidebar, he immediately dismisses jury for lunch.
Then Mehta tells everyone they will resume at 1pm . . . that “it would have been nice to know this (not knowing how long Watkins testimony will take) when I talked to the jury earlier, (about schedule.)”
Mehta is openly pissed, and storms off stand.
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***SIDE NOTE: as of lunch yesterday, I was informed by Meggs’ attorney that he was still 50/50 on whether or not to testify on his own behalf. He wants to. They do not want him too. (No update.) 99% sure Harrelson will not testify.
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Mehta returns to bench at exactly 1pm. Watkins takes the stand . . .
Mehta asks Woodward, Haller and Geyer to approach the bench . . . (pretty sure he’s asking them if they are going to pull the same routine, with last-minute testimonies. (Assumption.)
Jury enters room at 1:04pm . . .
Crisp begins direct of defendant Jessica Watkins. She joined the Army because she loves her country. When she joined Army, she then identified as her birth gender - male. She says she began struggling with her identity at 4 years of age, when her sister was born. She struggled with identity in the Army, but tried to suppress it. She acted up at school, and was beaten a lot . . . then would get beaten at home.
Strict “don’t ask, don’t tell” policy when she was in Army, and she was outed when a buddy in unit found she was going to trans support groups online - websites and chat rooms - on her laptop. He confronted her behind closed doors, aggressively. She panicked and went AWOL - for two months. Ran away to Alaska to hide.
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She eventually turned herself in at a police station. Disclosed why she went AWOL, as she was sure it was known what she left. She told her parents, and was asked to never come home again. Generally speaking, she is conformable with her identity today - but still struggles. Still a level of embarrassment and shame. She reached out to the trans community, but also felt awkward there, and stopped associating with the trans community.
Why does she go to these protests? She loves her country, and loves helping people that are hurt. She feels she has a bit of a death wish, and puts herself in harms way. If she dies, she wants to die for something important.
When she got out of the service, she became a firefighter, near Fayetteville, NC. She loved being a firefighter. Left there in 2014. Went back home to OH, because her parents finally trusted her again. Hadn’t seen them in 14 years, and was excited to go home, but they were open, accepting, and warm. It was a shock to her. It was at Christmas time, and they bought her a lot “girlie things.”
She doesn’t identify with the trans community, because she ultimately hates herself - not them.
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As to the formation of the OSRM (Ohio State Regular Militia). Late 2019, early 2020. Working at Old Navy, they had tornado alerts, and she thought it would be cool to have a rescue group to go out and help people. At first, just her and Montana Siniff, her fiancé. In early 2020, she thought if Trump was elected again, there would be a return to the rioting that happened when Trump was first elected. So rather than a volunteer rescue group, the OSRM became a “militia.”
Their new bar business was locked down by COVID mandates. They lived upstairs from the bar. They were financially hurt by the closures. Ultimately only had a total of six members of OSRM. Decided to start trainings with OSRM in late summer of 2020. Wanted to teach survival and rescue type stuff. Then, when the riots began, they wanted to focus on crowd and riot control. Weapons training. Camping, survival training. Training never occurred because of the riots and protests, they just started attending those protests.
Explains that none of the planned training was to stop election certification after November election. They started attending protests for the purpose of offering medical services and assisting police. They brought medical gear, weapons, flares for guiding in helicopters, cameras to record crimes . . . if necessary. Some protests were violent. Others not.
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At Louisville protest - with OKs - they were harassed by protestors who thought they were there ‘against’ them, but she explianed to them that she had both affinity for BLM and Breonna Taylor - being against ‘no-knock’ raids. This is where they first integrated with OKs.
She went to Million MAGA March, with expectations she’d be needed to protect crowd from counterprotestors. None of which materialized. She went with her medical gear and fire extinguisher - but never needed. They were there to protect Alex Jones and Gen. Flynn, but nothing ever really materialized, and there was a lot of disorganization by various group members.
As to the chat groups . . . she was added to several Signal chat groups . . . was in and out of them. She participated in lots of chats with radical language - including “dying for her country,” etc. She was paying attention to right-wing media talking about various concerns of violent circumstances that could come to America whether or not Trump remained as president or Biden . . . including forced vaccines by
United Nations . . . Chinese invasion through Canada, etc. She felt forced Vax by UN was about a 50/50 chance, and she didn’t want that to happen. In hindsight, she feels like she was gullible for listening to and taking in too much Alex Jones and InfoWars’ version of world events.
Then Biden began talking about mandatory gun buy-backs, confiscation, and also thinking the UN would invade, and they would have to escape to the mountains of KY. Clarifies that she had no intention of taking up arms against the US, but rather her perceived UN threat.
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When added to OK chats, she wouldn’t scroll back and look at the hundreds or thousands of messages prior to her joining the OK.
She describes breaking her wrist and ribs in early December ’20, in an accident in their bar/apt building. She was still in a lot of pain when first asked about attending J6 in DC. By about Christmas time, she felt she was in good enough shape from her injuries to attend. She likes attending protest events. Had “got in her blood.”
Don Seikerman - then the J6 Ops Leader, (before COVID), had contacted her. Was interested in her setting up a medical station on J6. She was also considering going with the NC OKs, who’d split off from national group. Says she saw Alex Jones was looking for security. Says Roger Stone had reached out to her directly. There were changes in mission for who she’d actually be protecting.
She did bring weapons from Ohio. Acknowledges talk of the Insurrection Act. Thought is was kinda crazy, but understood that if it had been invoked she’d probably be most needed for medical emergencies, so she left their guns with Crowl’s family in WV. She did bring maps of DC with her. Identified the more dangerous parts of the city.
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Never spoke to Rhodes, at all. And didn’t realize he was even there, until she saw late delivery of signal messages the next day. They provided security at the Freedom Plaza event on J5, for Alex Jones and Gen. Flynn. Went back to hotel after the event. Then got up early on J6 to get to The Ellipse “super early” before there was a crowd. Arrived about 6:30. Got their VIP passes much later on. Her phone stopped working pretty soon thereafter.
She used Zello (walkie talkie app) - but never communicated with Rhodes or other OKs on the 6th. She was invited to use Zello for J6 comms, but was unsure of who exactly invited her to that group, or who else was on it.
They weren’t security for The Ellipse, but were security for people leaving the Ellipse, and to escort VIPS to the Capitol. Left Ellipse, put their gear back on, (which was required to be left outside security area by the Secret Service). They did eventually get to their security detail, but she wasn’t sure exactly who their assigned protectees were. She didn’t know Harrelson and Dolan at the time, but ended up with their escort assignment. Took about 45 minutes to get to the Capitol. She was excited. So many American flags and a peaceful march felt like 4th of July.
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When they got to the Capitol, they went to the Peace Monument, where the crowd size was “insane.” They eventually worked their way up to the NW corner of the Capitol about 2:20pm. She says she was giving “play by play” accounts of what was going on thru Zello to others in that group.
Shows photo of her group from NW corner of Capitol building, with Capitol Dome in background. From this area, there is no evidence of protests or violence. (They are quite far away.) At this point, she thought the certification was over, and there was never any discussion of going into the Capitol to stop the certification of election. She did begin hearing messages that “Pence has betrayed us.”
By the time they got to the east steps, she was “swept up in the moment.” People were chanting “Oath Keepers,” they were singing National Anthem and cheering. There was no evidence of any violence from where they were. They arrived after barricade breaches, and were unaware of what was happening either on other side of Capitol or inside.
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Video Watkins took while on steps is introduced into evidence. Crowd was very loud. They were only on steps for 3-4 minutes, until someone tapped her, and they turned toward east side doors.
Watkins begins to explain there was no discussion of entering the Capitol to stop election. She has been asking herself ever since why they went toward the Capitol. The doors were already open. There was no apparent violence. Everyone was happy. no anger. It was an exciting time, and once she was in, she decided to take selfie videos. She says it was like an exciting time to enter “Our House.” She heard some glass breakage and cussed out the people who were breaking things.
Then - there was the moment she said, “We stormed the Capitol!” Then she started taking credit for things she wasn’t involved in - giving play by play on Zello. She felt like she wanted to be “in on the action.” Of course, she never actually did any of those things. (And no evidence presented by government.)
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She then started walking toward Senate chamber. Wasn’t interested in violence, but wanted her voice to be heard. Then the wave of people behind her started pushing and she saw a riot shield. Police were pushing. She felt like she was in a trash compactor, and her ribs were still broken and still in pain. She felt angry then and began saying “push, push, they can’t stop us.” She says she was swept up in the moment.
She wishes she could apologize to the police that were in that scrum protecting the Senate . . . “from my stupid ass.” When she first left the Capitol and into the next day, she was proud of what she did, but then as the news of everything that happened began to hit the news, she realized what a mistake she had made. Then began seeing her own face in news reports along with headlines about “police officer killed.” As a result, she started receiving threats, death threats and harassing messages.
Mehta calls for afternoon break at 2:24pm.
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Mehta back on stand at 2:42pm . . . Jury reseated at 2:48 . . . Watkins testimony continues . . .
Video being introduced. This is Capitol CCTV of Watkins helping Issacs out of the east side doors. He had been pepper sprayed and had asthma, so couldn’t breathe or see very well.
Another video, from exterior, shows Watkins and someone else with a medic badge carrying another man down the stairs who seemed severely injured - had what someone says was COPD, and someone else handed her an inhaler, which she administered to the man.
Was only inside and on stairs for about 20-24 minutes, total. She then noticed there was a curfew order on their phones. She then looked for Ben Parker, so they could leave and obey the curfew order. She thinks she was only on the Capitol grounds for about an hour. Never had any communications with Caldwell during all that time. Finally connected with him the next morning.
She went home to OH, and then the media started showing up at hers and her parents’ home. She decided to leave and go to the Caldwells farm to get away from the press and threats that were increasing. She had been doxxed by a reporter. She left Caldwell’s number with Montana, and told him to call if there was any visit from law enforcement.
She eventually returned home and voluntarily turned herself in to local law enforcement. She cooperated fully with FBI, including giving them the passwords to her devices.
She then answers questions about having no knowledge or participation in any plans or conspiracy to assault the Capitol, attack police, or stop certification of election.
No more questions . . .
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Mehta announces to jury that he may have “over promised” about schedule, and released them to go home at 3:01pm - so that he could continue with counsel, discussing other legal matters. They will begin again tomorrow morning at 9am.
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Nestler immediately comes froward and asks if the other defendants wished to REST, now. He doesn’t feel the jury needs to be present. (Nestler was quite pushy about this.) Mehta explains to him that Woodward and Haller only had a few more exhibits they wished to enter, and had already dealt with it.
Mehta says he received even more video and transcripts of Minuta comments during that contested USCP rescue event. He wants those transcripts removed.
Mehta will not allow mention that Caldwell was under the influence of drugs and alcohol influencing his language on J6 - there was never any expert witness presented, and Caldwell didn’t specifically assert as such.
Then the question of whether or not ‘Failure to file tax returns” by Rhodes could be admissible. Mehta WILL allow it to be admitted, in light of so much testimony about how the defendants made so much attempt to obey laws.
Fischer rises to argue that Caldwell did talk about the drug and alcohol influence on his speech. Mehta shuts him down quickly. Fischer states his objection to be read into the record.
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Haller rises to object to a transcription of Meggs’ voice on a transcript. Mehta angrily tells her that they have produced no expert or witness to show that it’s not Meggs’ voice, and without such evidence, the transcript assertion that it is Meggs’ voice stands.
Mehta decides on what terms the government can argue that Caldwell did or did not delete or unsend FB messages related to J6. Basically seems there will be some compromise in the language permitted.
Woodward rises to state that Agent Harris’s return as rebuttal witness should be in question since he has been sitting in the court room during much of the last several days of testimony. Nestler says the rebuttal will not deal with recent testimony. Woodward returns to protest.
Mehta asks if Harris will comment on any of the statements made by defense witnesses. Nestler basically says he will rebut some statements for veracity. Woodward and Fischer both put their objections on record.
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As to multiple conspiracy instructions . . .
Whew. This is far more complicated and fast-paced than I’m capable of transcribing or explaining. The debate largely revolves around the fact so many different interactions and non-interactions, knowledge of and no knowledge of each other’s words and actions, that it’s impossible for the jury to know which conspiracy applies to which defendant at different times. Woodward doesn’t want to be put into a position of having to throw other defendants under the bus to prove HIS client isn’t guilty of THEIR conspiracy. (Several examples cited.)
Nestler feels the defense simply wants to confuse the jury with more complicated instructions or exemptions from particular conspiracies.
Mehta says he will try to come up with some compromise language and circulate later this afternoon.
Mehta is “happy to take a look at whatever else anyone has to submit.”
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Nestler brings up that both Geyer and Haller wish to introduce new evidence without witnesses.
Geyer approaches to state that Special Agent Lazarus’ testimony was “mistaken” in terms of his recollection of interaction with OKs. He wasn’t where he claimed to be, when the OKs had already left the area. That interaction, as testified to by Lazarus couldn’t have happened . . . as shown by CCTV video.
Nestler says there’s not enough video to prove that he ‘wasn’t’ there when OKs were present.
Haller comes forward to argue that they DO have the video of each of the “3-4 times” Lazarus entered that area, and the OKs were not there.
Gov atty Hughes argues that without a person who has reviewed ALL video and timelines, they can’t possibly assert Lazarus wasn’t there when OKs were present.
Haller continues to argue that Lazarus did “all things he claimed he did,” but those things happened after the OKs were no longer with Ofc Dunn.
Mehta is taking Hughes’ arguments that the video evidence DOESN’T prove that Lazarus WASN’T ALSO there at the times he claimed to witnessed the interactions between Dunn and OKs.
Haller and Woodward state they DO in fact have an expert who has seen all the videos, and can testify to the fact that Lazarus was not where he said he was when he said he was there.
Mehta says he can see the relevance, and to let him know this evening what they work out.
Nestler asks about what might be the updated schedule. Mehta feels that the defense may not complete their closing arguments now until Friday . . . but still intends on getting this to the jury by Monday.
Court adjourned at 3:59pm.
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