The Oath Keepers seditious conspiracy trial continues on Tuesday with more testimony from FBI Special Agent Byron Cody about what he uncovered from devices belonging to the extremist group’s leader, Elmer Stewart Rhodes, and a slew of his co-defendants.
Some communications seized from his device were unfurled for jurors last week. Those messages offered grim insight into the group’s alleged plans to keep former President Donald Trump in office despite his defeat by now-President Joe Biden in the 2020 election.
There are still a huge number of text messages and correspondence to be reviewed. After Cody leaves the witness stand, prosecutors are expected to haul in at least two more FBI agents for testimony. Ernest Hancock, the Arizona-based host of the right-wing podcast Declare Your Independence, is also expected to testify on behalf of the federal government this week.
Hancock hosted Oath Keepers on his podcast including Rhodes and defendant Edward Vallejo on the morning of the Capitol assault. Vallejo has been split from the Rhodes trial group due to logistical reasons and will go to trial in November.
During the podcast appearance, Arizona Oath Keeper Todd Kandaris joined Vallejo. Vallejo and Kandaris each regaled Hancock with details of the network’s plans for that morning and discussed the “quick reaction force” the group had arranged. Vallejo said he took orders from Rhodes directly as well. In an appearance on Hancock’s podcast on Jan. 15, 2021, Rhodes promoted the idea of utilizing militias to aid the U.S. Army, but he was also caught on mic lashing out at Trump.
Rhodes sounded frustrated that Trump never invoked the Insurrection Act on Jan. 6. He was of the opinion that the 2020 election was stolen and when Trump failed to raise the Oath Keepers to his side during the joint session, he appeared to feel slighted.
“Trump is the, Trump is the giant vagina. That’s what I think. I think Trump is a blowhard. He just wanted to be president and he ain’t gonna do shit. Just between you and me. He’s not doing a damn thing...[about the stolen election],” Rhodes said on the podcast.
RELATED STORY: Prosecutors tell story of sedition through Oath Keepers ‘bloody’ texts, speeches
Tuesday, Oct 11, 2022 · 1:26:29 PM +00:00 · Brandi Buchman
Good morning. The trial is getting underway but before jurors enter the courtroom, Judge Mehta is weighing a series of motions that were filed over the last few days.
Oath Keeper founder Rhodes would like to keep a message between himself and his associate, Kellye SoRelle out of evidence. The message featured Rhodes saying that Congress would not “fear” anyone eager to change the outcome of the election unless they brought rifles.
Rhodes says the conversation is privileged because SoRelle was the Oath Keepers attorney at the time the message was sent. But the Justice Department argues that SoRelle was not technically Rhodes’s lawyer at the time of the message and that this defense has been relied on after the fact by the defendant to cover his tracks.
Regardless of this, prosecutors say the message should be admitted because of what is known as a “crime-fraud” exception, i.e. if a crime is committed under the color of privilege, the privilege is lost.
Tuesday, Oct 11, 2022 · 1:34:01 PM +00:00 · Brandi Buchman
Judge Mehta is also reviewing a request this morning from defendants that raises questions about the totality of the text messages prosecutors introduced last week when FBI Special Agent Byron Cody was on the stand.
Defense argues the messages were incomplete and don’t show the responses from other Oath Keepers that might put their communications in greater context. Assistant U.S. Attorney Kathryn Rakoczy, however, has said that other messages involving other defendants should be admitted later when those individuals are actually on trial.
Mehta is currently reviewing the evidence from the bench and determining what messages jurors will see. Some are more detailed messages concerning past activities and requests that were made for personal security detail for various individuals, he said Tuesday.
Some will be let in, others will be excluded for now for relevance.
Tuesday, Oct 11, 2022 · 1:43:13 PM +00:00 · Brandi Buchman
Defendant Thomas Caldwell has also asked Judge Mehta in a court filing if he can introduce evidence at trial that he says would exonerate him.
Caldwell wants to admit testimony from North Carolina Oath Keeper Paul Stamey. Stamey has not been indicted but he was present at the hotel in northern Virginia on Jan. 6 where Oath Keepers stockpiled weapons for their “quick reaction force.”
Caldwell has asked that Stamey receive immunity because he says Stamey is fearful of testifying without it. If he had it, Caldwell contends, he could clear his name and that of dozens of other Oath Keepers in North Carolina.
“Respectfully, it is beyond the pale that the government is seriously considering prosecuting an elderly man with multiple health issues, who provided a lengthy statement to the FBI over a year ago, and who was part of a 40-plus group ofNC-OKS who have not been charged,” Caldwell’s attorney David Fischer wrote in the Oct. 10 filing.
Tuesday, Oct 11, 2022 · 2:08:08 PM +00:00
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Brandi Buchman
Defense attorney Phil Linder asked Agent Cody if there is any reason to believe that Jan 6 was planned before Dec 19, the day Trump sent out his "Big protest in D.C. on January 6th. Be there, will be wild!" tweet.
Some of the texts FBI found predated the Dec 19 Trump tweet, Linder says, arguing that this suggests OKers were not pre-planning for Jan. 6. He pointed to the open letters Rhodes wrote too. But Linder forgot, one was written on Dec 23, after Trump sent the 12/19 tweet.
Tuesday, Oct 11, 2022 · 2:23:56 PM +00:00
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Brandi Buchman
Defense is arguing that these texts show more completely what Oath Keepers were up to in weeks before Jan. 6 and that these texts show they were preparing to assist people in DC in case the situation got out of hand, not stop the transfer of power.
Watkins defense attorney is also emphasizing that she was not privy to the messages sent before Dec. 31 to the Jan 6 21 DC OP channel. At the stat of the trial, her attorney, Jonathan Crisp, has argued that Watkins was merely swept up into the Oath Keepers and never intended to be anything more than a medic on hand when the group came to DC as part of its “peacekeeping” mission.
Tuesday, Oct 11, 2022 · 2:35:13 PM +00:00
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Brandi Buchman
An interesting note here too — Crisp asked Agent Cody how many Oath Keepers were in DC area on Jan. 6 to his knowledge.
Cody said 10 to 15, but that does not seem accurate. It is unclear if Cody meant that there were just 10-15 Oath Keepers in the area that were ultimately indicted.
Tuesday, Oct 11, 2022 · 2:55:57 PM +00:00
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Brandi Buchman
On cross-examination of FBI Special Agent Byron Cody this morning, Oath Keeper defense attorney Juli Haller is drilling Cody with questions about the tip that came in from witness for the prosecution Abdullah Rasheed about the Nov. 9 GoTo Meeting.
The meeting was held on Nov. 9, 2020. The first tip was made by Rasheed on Nov. 25, 2020. The first tip was not addressed by the agency. The next tip came in March 2021.
Haller asked why the FBI didn’t do anything with that tip sooner? Was it just filed away?
Agent Cody said he is unaware why it wasn’t brought to light sooner but that the threat center in West Virginia where Rasheed’s tips were first made, receives thousands of tips per day.
Tuesday, Oct 11, 2022 · 3:13:30 PM +00:00
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Brandi Buchman
Mehta cuts in briefly. Haller has been asking questions for several minutes now about the timing of certain text messages and when they appear in the exhibit etc. Mehta says the govt put forward the exhibit she's asking Qs about, not Cody. Haller kept going until Mehta cut in again and Haller ended her questions. The baton now goes to prosecutor Kathryn Rakoczy.
Tuesday, Oct 11, 2022 · 3:21:37 PM +00:00
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Brandi Buchman
On redirect, prosecution re-establishes that Cody was focused on late November through December up to the first week of January in his probe.
She has Cody establish, when was defendant Kelly Meggs first in the chat?
Cody says: Dec. 18.
That would be one day before Trump sent his “wild” tweet on Dec. 19.
We see another message. This one is from Dec. 5, 2020 in the Oath Keepers Old Leadership Chat.
Defense attorney Juli Haller asks Agent Cody when Watkins joined the chat? Recall, Crisp has argued she was not a part of it until far later.
Rakoczy shows a message sent by Rhodes from December 5 however, that puts her into the chat long before Dec. 19.
Added Jessica Watkins from [Ohio] who is a trusted veteran ... Jessica can ask you for help here...}”
Tuesday, Oct 11, 2022 · 3:24:49 PM +00:00
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Brandi Buchman
Prosecution is deftly undercutting the defense’s argument that there was no planning for Jan. 6 prior to Trump’s Dec. 19 tweet.
The first open letter that Rhodes wrote calling on Trump to invoke the Insurrection Act was published on Dec. 14.
Tuesday, Oct 11, 2022 · 3:39:38 PM +00:00
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Brandi Buchman
Before ending the redirect of Special Agent Byron Cody, prosecutor Rakoczy also shows the jury, again, a text from Rhodes that he wrote in late December to members of the Oath Keepers Old Leadership Chat.
Ten days had already passed since Trump’s “Big protest in DC on January 6. Be there, will be wild” tweet.
Rhodes appeared fired up. In the group chat, he told members that if Trump wouldn’t act to overturn the election results, the Oath Keepers would step in.
Addressing fellow members of the far-right group, Rhodes wrote of Trump on Dec. 29, 2020: “And he needs to know the dire consequences if he doesn't... we will not submit to an illegitimate ChiComm puppet regime.”
Rhodes published two open letters by this time demanding that Trump invoke the Insurrection Act in response to the “stolen” election. One letter was published on Dec. 14, and another on Dec. 23.
Tuesday, Oct 11, 2022 · 3:47:56 PM +00:00
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Brandi Buchman
Our next witness is up. FBI Special Agent Justin Eller is on the stand. He joined the OKers investigation in mid-Jan 2021. He's worked with cooperating witnesses, and has reviewed open source docs/videos. He's interviewed between 20-30 individuals.
Tuesday, Oct 11, 2022 · 4:22:58 PM +00:00
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Brandi Buchman
It seems the theme today for the prosecution is to clearly establish that all defendants had a direct connection to the conspiracy.
In particular, there is a connection drawn by prosecutors from Oath Keeper Donovan Crowl and Thomas Caldwell. Crowl will face trial separately later this year.
Tuesday, Oct 11, 2022 · 4:40:47 PM +00:00
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Brandi Buchman
Getting into the recruitment efforts allegedly led by defendant Jessica Watkins with testimony from FBI Special Agent Eller:
Watkins said of the weapons training, actually, “We have one coming up Jan 3- Jan 9 actually."
But no training occurred, Agent Eller testifies. Why?
"I don't believe it occurred because some of the members from the Ohio state militia went to Washington, DC on Jan. 6."
Tuesday, Oct 11, 2022 · 5:57:11 PM +00:00
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Brandi Buchman
Judge Mehta declined to grant a request from defendant Thomas Caldwell. Caldwell wished to admit testimony from Oath Keepers who were not charged, in particular testimony from North Carolina Oath Keeper Paul Stamey. Caldwell contends that testimony would exonerate him.
The government argues that this information is irrelevant and prejudicial because it presumes too much of the prospective guilt or innocence of an uncharged witness.
“I understand the frustration but I don’t think it’s appropriate here,” Judge Mehta said.
FBI Special Agent Justin Eller is back on the stand.
Tuesday, Oct 11, 2022 · 6:30:31 PM +00:00
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Brandi Buchman
Jurors arae getting to see some of the physical evidence seized from defendants.
Agent Eller is being asked by prosecutors to ID Watkins in a photo extracted from her phone and also found on Donovan Crowl's phone. Bennie Parker is behind her. She is wearing the same helmet jurors saw, the gloves, the same patches.
Agent Eller also showed jurors a gas cannister, a hopper for the paintball gun and the paintball gun registered to Ohio.
Instead of paintballs, however, the gun was outfitted to handle rubber-exterior, metal-interior balls.
Tuesday, Oct 11, 2022 · 6:35:51 PM +00:00
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Brandi Buchman
Then we see the pool cues.
FBI Agent Justin Eller notes they are cut shorter than a typical cue, missing the soft end used to strike a pool ball. These have zip ties lopped on the end, like a handle. One was found in Watkins's house, the other in her car.
Tuesday, Oct 11, 2022 · 6:55:42 PM +00:00
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Brandi Buchman
Jurors are being excused for the afternoon break. This was prompted by a request from Watkins defense attorney Jonathan Crisp. Crisp appears to have taken issue with the exhibits presented to jurors just now. Jurors will leave the courtroom before it is discussed further.
Tuesday, Oct 11, 2022 · 7:24:51 PM +00:00
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Brandi Buchman
During a brief recess for jurors, there was a bit of tending to an issue over a message the government introduced earlier. (Below tweet)
Crisp argued DOJ was being "disingenuous" by introducing this message and not others around it that could have lended further context.
Judge Mehta did not agree and ruled against Crisp.
Tuesday, Oct 11, 2022 · 7:32:03 PM +00:00
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Brandi Buchman
Watkins's defense attorney Crisp has worked to paint his client as a medic with military experience simply concerned about keeping the peace on Jan. 6 after clashes took place between Oath Keepers and counter-protesters in November and December 2020.
Tuesday, Oct 11, 2022 · 7:42:30 PM +00:00
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Brandi Buchman
Rhodes’s attorney James Bright has spent the last several minutes questioning FBI Special Agent Eller and trying to have him testify about an alleged schism inside the Oath Keepers national division and its North Carolina chapter. The presumed aim of this defense is to convince jurors that Rhodes and other Oath Keepers who went into the Capitol were on their own, not taking his order.
But Eller told the court his job was focused on the Ohio division of Oath Keepers and he can’t say how severe the rift was between members of the North Carolina chapter.
Bright also tried to play down the “battle-dress uniforms” Oath Keepers were seen wearing at rallies prior to Jan. 6 but Eller didn’t quite give him what he was after:
Tuesday, Oct 11, 2022 · 7:50:33 PM +00:00
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Brandi Buchman
This may have been the strongest moment for the defense yet.
Under cross from Rhodes’s attorney James Lee Bright, Bright asks Agent Eller whether any of the text messages he has specifically reviewed today point toward planning or a conspiracy for Jan. 6.
Eller affirms that the texts he was specifically shown today only covered discussions about going to D.C., not planning a seditious attempt to stop the transfer of power.
Eller did not answer the question again, not by offering new testimony or repeating for jurors what he has already said.
Tuesday, Oct 11, 2022 · 7:56:13 PM +00:00
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Brandi Buchman
The defense attorney for Kenneth Harrelson, Brad Geyer, comes out with his first question to Special Agent Eller by asking if he remembers Harrelson from how he helped USCP Officer Harry Dunn during the rioting. Immediately, Mehta cuts in to stop Geyer; that's irrelevant.
And it's also a wildly unproven allegation.
Tuesday, Oct 11, 2022 · 8:44:59 PM +00:00
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Brandi Buchman
As the trial day came to a close today, prosecution asked Agent Eller to discuss a series of texts from Nov. 9, 2020 where Watkins allegedly discussed plans with recruits about military training for Jan. 6.
In one of the messages, Watkins wrote: “I want my guys on the same page for the inauguration.”
This raises serious questions about the defense’s arguments around the timeline. If Oath Keepers were only going to DC to Jan. 6 to serve as a “peacekeeping” force against elements like antifa, why did Watkins want her recruits ready for the inauguration, several weeks after certification?
Tomorrow, the trial resumes at 9:30AM ET.