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Oath Keepers say Capitol riot charges 'unconstitutionally vague,' want indictment tossed

Attorneys for multiple Oath Keepers indicted in a January 6 conspiracy case are asking a judge to throw out the most serious charges against them.

WASHINGTON — Attorneys for more than a dozen Oath Keepers charged in the government's main January 6 conspiracy case argued Wednesday that charges against their clients should be thrown out because the certification of Electoral College votes was not an "official proceeding" as far as a federal statute is concerned.

Twenty alleged members of the militia group have now been indicted on a slew of charges in connection with the Capitol riot, including conspiracy, obstruction of an official proceeding and tampering with documents. It was those most serious charges that 15 defendants appeared before U.S. District Judge Amit P. Mehta on Wednesday to contest.

Attorney David W. Fischer, who represents alleged Virginia Oath Keeper leader Thomas Caldwell, told Mehta he believed the Justice Department was misapplying the obstruction of justice statute because, he said, it was intended to be used for "judicial and quasi-judicial proceedings," like Congressional or court hearings.

“There’s absolutely nothing about the Electoral College certification that the average person would believe is justice-related," Fischer said.

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Mehta questioned him on that, saying it seemed no Congressional hearing except for impeachment would qualify under his definition and pointing out that the statute in question did not define "official proceeding" as strictly as Fischer stated.

Carmen Hernandez, an attorney for Caldwell's co-defendant Donovan Crowl, argued against the charges from a different angle – saying the DOJ was using an unconstitutionally vague reading of a federal law previously used only to target corporate fraud to prosecute Capitol riot participants for exercising their First Amendment rights.

“Interrupting Congress, going in and shouting and making a fool of yourself? That’s what we Americans do," Hernandez said.

"You think these defendants were exercising their First Amendment rights?" Mehta asked. "By rushing past police? By rushing past barriers?"

"Yes," Hernandez said.

Despite his questioning, Mehta said the defense had raised serious questions about the application of the obstruction statutes the Oath Keepers are charged with violating. He took their arguments under advisement, but did not issue a ruling Wednesday.

Before ending the hearing, Mehta also heard a separate motion by Fischer for a change of venue in the case. In the filing, Fischer claimed Caldwell and other Capitol riot defendants couldn't get a fair trial in the District because D.C. residents suffer from "Trump Derangement Syndrome" and "despise many of the things traditional Americans stand for." Mehta made it clear he was less than impressed by the filing.

"I think you've done a wonderful job for your client. I really do. But this brief... reads less like a legal brief than something you might read on a blog," Mehta said. "And that's not acceptable. I expect better from you. I expect better from everybody in this courtroom."

Mehta did not set a date by which he would rule on either the motion to dismiss or the change of venue motion. Because of the number of defendants, the Oath Keepers case is currently scheduled to be tried in two separate batches, with the first group to begin trial on January 31.

Training for War

The Oath Keepers case has become the Justice Department’s largest and most complex Capitol riot investigation – now counting 20 separate defendants across multiple states. Three of those defendants have now taken plea deals and agreed to cooperate against their fellow militia members.

Those Oath Keepers include two men, Joshua James and Roberto Minuta, who provided private security for Trump confidante Roger Stone, and Ohio bar owner Jessica Watkins – a U.S. Army veteran accused of helping to coordinate a “quick reaction force” of armed Oath Keepers stationed outside of D.C. on the day of the “Stop the Steal” rally.

Altogether, Watkins, James, Minuta and the 17 other Oath Keepers under indictment are accused of plotting for weeks to travel to D.C. on January 6 to disrupt the joint session of Congress. The Justice Department alleges that plot included training for militia members to learn paramilitary combat tactics and the use of encrypted chat applications both to plan beforehand and to communicate during the riot.

At least three of the alleged conspirators – Kenneth Harrelson, Kelly Meggs and his wife Connie Meggs – are accused of “training for tactical warfare” at a firearms school in Florida ahead of the riot. Kelly Meggs is further accused of bragging in a December 19 post that he had formed an “alliance” between the Oath Keepers, Florida 3%ers – a fellow militia group – and the Proud Boys.

“We have decided to work together and shut this **** down,” the FBi says Meggs wrote.

The day after Christmas, prosecutors say Meggs again posted about the alleged plan, writing, “Wait for the 6th when we are all in DC for insurrection.”

The FBI says the Oath Keepers did more than train, though. As part of the plea deal, one of the defendants, Mark Grods, has agreed to testify that the group brought paramilitary gear and supplies – including firearms, camouflages combat uniforms, tactical vests with plates, helmets and radio equipment – to D.C. for the operation. The DOJ has released surveillance images appearing to show multiple defendants bringing rifle cases to the Comfort Inn in Ballston, Virginia, where the agency contends they stored their cache of weapons.

Watkins is alleged to have taken a leadership role in organizing the “quick reaction force,” or “QRF.” In messages obtained by the FBI, investigators says Watkins promised a force of law enforcement members of the Oath Keepers would be waiting with weapons outside of D.C. if necessary.

“If it gets bad, they QRF to us with weapons for us,” Watkins allegedly wrote in communications to other Oath Keepers members. “We can have mace, tasers or night sticks. QRF stages, armed, with our weapons, outside the city.”

Once the Oath Keepers reached the Capitol during the riot, investigators say they moved in a military “stack” formation. The FBI says it has obtained a recording of Watkins telling other Oath Keepers, “We have a good group. We have about 30-40 of us. We are sticking together and sticking to the plan.”

According to court documents, an unknown male then responds, “We’ll see you soon, Jess. Airborne.”

Later in that same recording, another Oath Keeper says, “You are executing citizen’s arrest. Arrest this assembly, we have probable cause for acts of treason, election fraud.”

The DOJ also says in the days after the riot, Watkins and another Oath Keeper she had recruited into the militia, Donovan Crowl, discussed mounting a continuing resistance against the Biden Administration in the mountains of Kentucky.

“Gives us the high ground and makes tunneling out fighting positions great (above water line),” Watkins allegedly wrote. “Be like the NVA (North Vietnamese Army) and network tunnels.”

The 20 Oath Keepers charged to date in the case face a slew of charges, including conspiracy, obstruction of an official proceeding, destruction of government property and destroying evidence. Because of the number of defendants, the case is scheduled to go to trial in two batches. The first is set to begin on January 31. The second group will begin trial on April 4.

We're tracking all of the arrests, charges and investigations into the January 6 assault on the Capitol. Sign up for our Capitol Breach Newsletter here so that you never miss an update.

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