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Judge allows 'boots on the ground' Zello chat in Oath Keepers trial, but bars DOJ from using 'caustic' statements

A judge allowed in numerous statements made by accused Oath Keeper Jessica Watkins, but blocked the DOJ from entering "caustic" comments by others.

WASHINGTON — A federal judge ruled Monday that an audio recording of an Oath Keeper narrating portions of her time at the U.S. Capitol Building on Jan. 6 can be admitted at trial, although he restricted the government from presenting a jury with “caustic” statements made by other members of the chat.

Ohio Oath Keeper Jessica Watkins and other members of the militia group set to begin trial next week sought to keep the recording of a Zello chat out of trial, arguing last month it was “hearsay within hearsay.” The chat was recorded in real-time on Jan. 6 and reviewed by On the Media reporter Micah Loewinger and MilitiaWatch founder Hampton Stall for WNYC Studios.

Zello is an application that allows users to communicate through their phones like walkie-talkies, and on Jan. 6, prosecutors say Watkins joined a Zello channel called “Stop the Steal J6.” Throughout the afternoon, they say, she used it to provide “boots on the ground” updates and to respond to information being provided by other users who appeared to have been watching the Capitol riot unfold on television.

Prosecutors say Watkins began using the application at 1:49 p.m. on Jan. 6, when she responded to the channel’s creator, identified as “1%Watchdog,” who had just told the chat, “It looks like Pence is doing his traitorous bulls***, and the election stealing is in progress – it looks to me, at this point, that that’s a felony high-crime and treason in prison inside the National Capitol building.”

According to a transcript of the chat, Watkins, using the name “OhioRegularsActual – Oathkeeper,” responded, “Right, brother. We’re boots on the ground here. We’re moving on the Capitol now.”

A minute later, according to the transcript, Watkins said, “We have a good group. We’ve got about 30, 40 of us. We’re sticking together and sticking to the plan.”

Shortly thereafter, 1%Watchdog informed the chat that "the tip of the spear has entered the Capitol building." 

U.S. District Judge Amit P. Mehta ruled Monday that statements made by both Watkins and others in roughly the first 10 minutes of the chat, including 1%Watchdog, were admissible because they provided a present sense impression of her mindset at the time and gave context to her statements. That includes multiple statements from Watkins seeming to describe her intent on Jan. 6, including, “I’m probably going to go silent when I get there because I’m gonna be a little busy.”

At 1:58 p.m., 1% Watchdog said in the chat, “Police can’t stop you. This is a constitutional enforcement action, direct action. There is no legitimate authority in the federal government. The Congress has failed, the executive branch has failed – other than Trump – and the Judicial Branch has failed, Supreme Court. This is the civilian exercise of civilian power to alter and abolish this f***ing tyrannical, treasonous government piece of s*** and drain this f***ing swamp.”

According to the transcript, Watkins immediately responded, “Trump’s been trying to drain the swamp with a straw. We just brought a shop vac.”

Watkins and 10 other members of the Oath Keepers were indicted in January on charges of seditious conspiracy for their role in the assault on the Capitol. The first group of those defendants was scheduled to begin a jury trial in D.C. on Sept. 26. Defense attorneys were expected to argue, at least in part, that Oath Keepers were in attendance on Jan. 6 as part of the group’s history of providing back-up to law enforcement at various events and disaster scenes. In a memo filed earlier this month, prosecutors said Watkins’ statements on the Zello chat disprove that theory.

“At 1:57 p.m., user 1%Watchdog advised those members of the group headed to the Capitol to be careful— 'watch your back’ —because law enforcement was also headed to the Capitol to help fortify it,” prosecutors wrote. “A minute later, he advised Watkins, ‘The police can’t stop you.’ These statements are important evidence about Watkins’ knowledge and state of mind: She was leading her group towards the Capitol not to assist law enforcement but rather in spite of their presence.”

Though Judge Mehta ruled Watkins’ statements were admissible against both herself and her co-defendants, he blocked the government from using large swaths of the recording – including a 23-minute period from 2:01-2:24 p.m. during which Watkins didn’t speak in the chat. He also barred the use of a number of “caustic” statements by 1%Watchdog – who prosecutors have not identified publicly – including an instruction to, “Don’t kill anybody unless you’re being attack,” and a later statement saying, “Military principle 105, military principle 105, cave means grave.”

Judge Mehta did admit one later statement by another chat participant, “FreedomD0z3r91” – who prosecutors have identified as an unindicted co-conspirator to Watkins in a potentially separate case. At approximately 2:44 p.m., Watkins told the group, “We are in the mezzanine. We are in the main dome right now. We are rocking it. They are throwing grenades, they are fricking shooting people with paint balls. But we are in here.”

To that, prosecutors will be able to tell a jury, FreedomD0z3r91 responded, “Get it, Jess. Do your s***. This is what we f***ing lived up for. Everything we f***ing trained for.”

Jury selection was scheduled to begin Sept. 26 for Watkins and four co-defendants: Kelly Meggs, Kenneth Harrelson, Thomas Caldwell and Oath Keepers founder Stewart Rhodes. Watkins faces six counts, including seditious conspiracy, conspiracy to obstruct an official proceeding, conspiracy to prevent an officer from discharging any duties and aiding and abetting destruction of government property. Watkins is charged individually with one count of aiding and abetting civil disorder for allegedly obstructing, interfering with or impeding police guarding the hallway between the Capitol Rotunda and Senate Chamber.

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