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Attorney for Oath Keepers Member Charged in Jan. 6 Seditious Conspiracy Case Accuses Government of Illegal Wiretap

Thomas Caldwell

Prosecutors quote Oath Keepers member shouting this in a YouTube video, where he gestures toward the Capitol.

A member of the Oath Keepers militia group charged with seditious conspiracy in the Jan. 6 attack on the U.S. Capitol claimed through his attorney that the government might have illegally tapped his phone.

Thomas Caldwell, 67, is one of 10 co-defendants, including Oath Keepers founder Stewart Rhodes, charged with seditious conspiracy in the Capitol siege, when scores of Donald Trump supporters swarmed police and breached the building in an attempt to block Congress from certifying Joe Biden‘s win in the 2020 president election.

Caldwell is accused of organizing a subgroup of the anti-government militia—known as a so-called “quick reaction force,” or QRF—to be ready on “standby with guns in a hotel across the river” from the Capitol on Jan. 6.

“The Geek Squad Can’t Get It Down”

During a status conference Friday, Caldwell’s attorney David Fischer said that getting his client’s cell phone from the government is key to his defense, and not just the data extracted from the device that the government has already provided.

“We’re also concerned that my client’s phone may have been wiretapped without a warrant,” Fischer told U.S. District Judge Amit Mehta, after saying that having access to the phone was crucial to determining whether voicemails were accessed. “We believe that’s the case based on information that we have reviewed in discovery regarding my client’s wife’s cell phone, that it may have been wiretapped without a warrant, and we need Mr. Caldwell’s phone to make a determination whether that took place.”

Fischer also bemoaned the difficulty he’s been having in accessing discovery from the databases set up by the government.

“Every time we try to look at my client’s cell phone data, it takes two to three hours for it to load up on the computer,” Fischer said. “We’ve tried different computers. I’ve bought a computer just to try to pull it up. I’ve gone to Best Buy, and the Geek Squad can’t get it down any faster.”

In a nod to the fact that the government’s prosecution of Jan. 6 defendants has been going on for more than a year—and perhaps the fact that his client may not go to trial in July, as currently planned—Fischer said that his client and co-defendants in the case were “indigent” and need financial support to pay for their attorneys.

“Frankly, there’s no way any person could pay potential legal bills is a case like this,” Fischer said, echoing what Rhodes said during an abbreviated jailhouse interview with a right-wing network earlier this week. “If the court wants a trial date as soon as possible, there needs to be [the possibility] of funding for paralegals, for technical experts, perhaps for even additional [court-appointed] attorneys to be involved to help the defense team.”

Urging Fischer to get in touch with the office of the federal public defender to facilitate those needs, Judge Mehta replied: “You are not going to have any obstacle from me if that’s something you need and something you’re seeking.”

Caldwell is currently on pretrial release under a “high intensity supervision program,” according to court records.

“They’re Well Aware of This”

Attorney Brad Geyer, who represents Kenneth Harrelson, also complained about the discovery he has received in the case so far, implying that the government was holding back.

“As we all know, based on investigations, there were police officers who were inviting participants into restricted areas. This is well-documented,” Geyer said, adding that he did not learn this from discovery provided by the government, but rather from “members of the public” who brought it to his attention.

As an example, Geyer cited a video of an officer on the steps in front of the Capitol having a “loud conversation, saying he’s going to check with his supervisors to see about getting permission to let everybody up on the front steps.”

Geyer said that two pastors then shared that information with the crowd.

“The government doesn’t have any interest in who they might be,” Geyer said. “The problem is, we have plenty of time [to prepare for trial] as long as the government is going to get us who ushered my client up the steps and had the doors opened from the inside. They’re well aware of this[.]”

Federal prosecutors charged more than 200 people with assaulting law enforcement in order to breach the U.S. Capitol on Jan. 6, including by using pepper spray, PVC poles, fire hydrants, barricades and other objects used as weapons. The charges, and video footage of these clashes between the mob and law enforcement, belie the repeated conspiracy theories by right-wing partisans that police willingly let Trump supporters inside to discredit them.

Mehta, a Barack Obama appointee, did not respond to the substance of Geyer’s claims Friday, although he has previously warned him to keep his more bombastic accusations—including likening COVID-19 vaccines to the Holocaust—in check.

“Active Negotiations”

Prosecutor Kathryn Rakoczy said that the government is in “active negotiations” with some defendants as to whether they want to resolve the case before trial. This is particularly notable in light of the guilty plea entered Wednesday by Joshua James, a co-defendant in this case who has now agreed to “fully cooperate” with the federal investigation.

The news that other defendants are negotiating with prosecutors is likely to displease Rhodes, who in that same jailhouse interview said the number of Jan. 6 defendants who have made plea deals is “unfortunate.”

Rhodes got some other potentially bad news on Friday, when Mehta said that he wouldn’t stop the U.S. Marshals Service from moving him out of where he is currently detained in Oklahoma.

At the end of a February hearing in which Mehta determined that Rhodes posed a “clear and convincing danger” and ordered him kept behind bars pending trial, Rhodes’ lawyers had asked that he not be transferred. The government hadn’t opposed the request, but in a court filing said that the decision was up to the U.S. Marshals Service.

“What I can tell you is I’m not going to be in a position to grant the request that he stay where he is,” Mehta told attorney Phillip Linder. “I’m deferring to our Marshals services and their reasons for wanting him where they’d like him to be. To the extent there’s an order to keep him [in Oklahoma], I’m going to lift that order.”

It wasn’t immediately clear whether Rhodes would be transferred, or to where. Although his case is being tried in Washington, transferring him to the D.C. jail may be risky, where Jan. 6 defendants have reportedly become further radicalized.

[Images via YouTube screengrab/Collins County (Texas) Jail.]

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