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Mar 14

Written by: Diana West
Sunday, March 14, 2021 6:15 AM 

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Saw an amazing report, the next best thing to man bites dog: Federal judge raps sloppy, run-amuck US attorneys. Even according to Politico of the precious Left, this was a "setback" to the Justice Department's "widest ranging conspiracy case" related to the January 6 Capitol protest.

What happened is this: Judge Amit Mehta ordered the pre-trial release of Lt. Commander (USN, ret.) Thomas Caldwell (above), 66, to home confinement pending trial on numerous charges spun out of the DOJ fever dream that a handful of Oath Keepers militia (of which Caldwell is not even a member) conspired to lead a pre-planned attack on the Capitol to stop Congress from certifying the fraudulent 2020 election.

That may not sound like much, but he judge's decision lets a crack of light onto what has been unmitigated darkness. 


The decision is a setback for the Justice Department as it seeks to show that some elements of the Jan. 6 attack on the Capitol were part of sophisticated and organized cells intent on violently blocking the transition of power. 

The reason the judge's decision is a "setback" is because Caldwell is the Justice Department's "lead defendant" in its fantasy of premeditated insurrection. How, in their hasty and error-filled indictment (see below), did Government lawyers conclude Caldwell was a leader of this supposed army of Trump rebels? Because Caldwell's social media handle is "Commander Tom."

That the moniker is just a relic of Caldwell's Navy days would be funny if the consequences of this sloppy prosecutorial overreach were not so serious.    

Judge Amit Mehta said the fact that Caldwell never went into the Capitol with a so-called “stack” of other Oath Keepers rendered the government’s case against the Navy veteran somewhat weaker than that against some of the other eight defendants in the case.

"There is an absence of direct evidence, at least, of planning by Caldwell to enter the Capitol building,“ Mehta said following a Friday afternoon hearing held by videoconference. “Ultimately, he did not enter the building.”

No evidence of planning, no entry into the Capitol. Then, why, oh why, has this decorated, twenty-year military veteran with no prior arrests been held without bond on conspiracy-related charges for two months in the first place?

Reading the Politco account, it becomes clear that what the prosecution is really targeting is Caldwell's attitude. 

Prosecutors had argued that Caldwell presents a risk of violence because he and his allies expressed continued belief that the election was stolen even after Jan. 6.

So do I. According to every poll I've seen, so does a large majority of Republicans. In our new post-Constitution day, this is a hanging offense, metaphorically speaking, for now. 

“Those factors still exist for them,” said assistant U.S. Attorney Kathryn Rakoczy, “that the current political order is something that is problematic and should not be followed.”

The prosecutor noted that Caldwell told a fellow Oath Keeper in a post-Jan. 6 text message to take solace “because what they did was righteous.”

And the US Government seeks to punish Thomas Caldwell for what he thinks about it.

The man has been punished plenty by the Government already. According to an eye-popping court filing by Caldwell's on-the-ball new attorney, David W. Fischer, Caldwell is now confined to a wheelchair with debilitating back pain after not having received medical attention for his chronic spinal condition while in custody.

That's not all. I've read counselor Fischer's filing. As much as it is an affirmative argument for Caldwell's pre-trial release, it is a devastating indictment of the team of Justice Department lawyers, including assistant US Attorney Rakoczy, late of the Mueller Special Counsel investigation into Russian collusion, for mounting a deeply flawed case based on reckless and numerous errors about the accused. These errors alone should lead to the case's dismissal. The prosecutors involved should be detailed to traffic court, permanently, if not disbarred.

As noted by Fischer, the basis of the indictment against Caldwell rested on the following claims: 1) he was a Commander of the Oath-Keepers 2) he was a member of the Oath-Keepers and 3) he had stormed the Capitol.

None of the above are true, as, Fisher notes, "the Government has tacitly confessed." 

Further, the Government initially claimed Caldwell was a "fugitive" from justice with outstanding  warrants against him. The fact is, Caldwell has no arrest record. Had Government lawyers given Caldwell the courtesy of an interview, he might have saved them what should be eternal embarassment.

The Justice Department's sloppiness gets even worse -- ridiculous, too. We might call it goofy if the animus were not so evident. To wit: A big part of the conspiracy case rests on time-stamped "evidence" of communications among Oath Keepers/conspirators via a walktie-talkie type app called Zello. With this "evidence," the Government was able to persuade the Court that there well might have been "a specific, contemporaneous plan to breach the Capitol," as Fischer explains.

In court papers, the Government described the Zello communications as follows:

At the approximate 5 minute mark, the voice believed to be [co-defendant] Watkins reports, "We have a good group. We have about 30-40 of us. We are sticking together and sticking to the plan."

At the approximate 7 minute 44 mark, an unknown male states, "You are executing citizen's arrest. Arrest this assembly, we have probable cause of treason, election fraud." The voice believed to be WATKINS responds,"We are in the mezzanine. We are in the main dome right now. We are rocking it..."

Fischer writes:

...The Government's inference is clear: The Oath Keepers had a plan to invade the Capitol and arrest government officials, discussed the "invasion plan" at the "5 minute mark," and were inside the Capitol a few minutes later executing the plan (at the 7:44 mark).

Unfortunately, the Court has been misinformed by the Government. Upon receipt of discovery, undersigned counsel discovered that the Government's Zello evidence actually consists of a National Public Radio (NPR) report, which aired random snippets of Zello communications. The above timestamps the Government referenced are time-stamps in the NPR report, not from Zello. 

Wait, what?

In other words, the referenced Zello communications did not take place 2 minutes and 44 seconds apart in real time. Accordingly, the Court and a magistrate judge, who signed a search warrant based partly on this representation, were under the misimpression that solid, contemporaneous evidence existed of a premeditated plan to breach the Capitol.

That's some "misimpression."

Ironically, after listening to these Zello communications, the Government’s smoking-gun proof of premeditation fizzles. Specifically, it is clear that the communication regarding “sticking to the plan” happened several hours before the Capitol breach, and probably in the very early morning, as there is no crowd noise in the background.

By contrast, the second Zello communication (from inside the Capitol) had substantial background noise. In short, the Court, which took these communications heavily into account in detaining Caldwell (and Watkins), was misinformed by the Government. As Watkins’ counsel (correctly) represented to the Court, the communication regarding the “plan” was referring to the plan to protect rally supporters from Antifa. 

Oh, and by the way, Caldwell -- not a leader of the Oathkeepers, not a member of the Oathkeepers, didn't enter the Capitol -- doesn't have Zello. 

There is so much fundamentally wrong with the Justice Department's "keystone kop" indictment (but mean and vicious) that the Fischer filing is well worth reading in its entirety.

I will close out this post with one more anecdote I just can't resist relating.

It concerns the so-called insurrection's "Quick Reaction Force."

Fischer writes:

In a similar fashion, the Government overstated concerns regarding Caldwell’s references to a “Quick Reaction Force.” The Court placed great weight in making its detention decision on the threat this “Quick Reaction Force” allegedly posed to the public.

Ironically, however, the “Quick Reaction Force” was neither “quick,” “reactive,” nor a “force.” The “Quick Reaction Force” was one person. Multiple sources have advised undersigned counsel that PERSON THREE—the Quick Reaction Force-- is in his late 60s, obese, and has cardiopulmonary issues, a bad back, a bum knee, and is need of a hip replacement. The Government’s fanciful suggestion that right-wing tactical commandos were waiting in the wings to storm the Capitol is one for the ages. Likewise, multiple sources have confirmed to undersigned counsel that PERSON THREE’s assignment as “Quick Reaction Force” was designed to “humor the old man.”...

It is hard not to laugh. But it is also hard not to cry. 






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