More Signs That DoJ's Sedition Hoax Is Faltering

Commenter Anonymous linked to a post at CTH earlier today. The significance of the CTH post is that it links to a Reuters article (dated 3/24/21) that presents some pretty good legal reporting on the status of DoJ's Sedition Hoax. Sundance's take is that the Reuter's reporting indicates that DoJ is "walking back" its Sedition Hoax--admitting to Reuters that their "evidence" isn't what they claimed it was, in spite of Michael Sherwin's outrageous 60 Minutes atttempt to bias the jury pool. Sundance is quite correct, although obviously DoJ isn't about to pack it all in and go home:

Interesting that Reuters would outline the walk-backs.  Even more interesting that the details of the walk-backs seem to prove the DOJ never actually intended to win any of these cases, but rather wanted to advance a political narrative about extremists through their earlier statements.

Again, I would caution that they're not simply giving it up. My own position--which is the same in essentials--has been that this is basically "political theater"--which is why I've dubbed it the Sedition Hoax. The purpose of this hoax narrative or "theater" is not simply to maintain the narrative of "extremism." The purpose is more specific: it's to influence public opinion for Election 2022 and prevent loss of the Dem House, as more details of election fraud in Election 2020 keep coming out. That's why it's necessary to keep the military occupation of the Imperial City running as long as possible, and that's why--despite the evidentiary problems--the Dems will try to keep the Sedition Hoax running as long as possible. That's exactly why they're trying to keep the defendants in jail and to get an indefinite extension of the Speedy Trial Act. They don't want any speedy trials--they want political theater that will last from now until November, 2022. Obviously they'll accept some nickel-dime convictions, but that's not the big picture here.

The problem they're running up against is judges with old fashioned ideas about fair trials even for conservatives. Remarkably, among those judges who are raising pointed questions about what DoJ is up to are Obama judges--as we saw yesterday with Judge Mehta's dressing down of DoJ.

With that in mind, let's take a look at what Reuters has to tell us. First of all, it's worth noting that Reuters makes no bones about the fact that the Sedition Hoax is in trouble--as evidenced in the title of the article:

Amid setbacks, prosecutors abandon some claims in U.S. Capitol riot cases

The article is worth a careful read:

WASHINGTON (Reuters) - Prosecutors made some serious claims after the deadly U.S. Capitol attack, saying they had evidence rioters planned to kill elected officials, suggesting a Virginia man at the building received directives to gas lawmakers, and accusing another suspect of directing mayhem on Jan. 6 with encrypted messages.

But the Justice Department has since acknowledged in court hearings that some of its evidence concerning the riot - carried out by a mob of supporters of former President Donald Trump to try to overturn his election loss - is less damning than it initially indicated.

In other words, DoJ has had to admit in court--i.e., to judges--that they were puffing up their claims against the defendants. To what purpose? To keep them in jail indefinitely--as we'll see below. That's a serious matter. Judges expect prosecutors to argue strongly for their positions, but at the same time misrepresentations to a court that would deprive defendants of their freedom is offensive to a judge, because it would involve a judge in a serious miscarriage of justice. The judge could end up in the position of explaining why he or she accepted bogus arguments instead of questioning the factual basis of the prosecutors' arguments more rigorously--as should be done when bail is being denied.

The department suffered another blow this week when U.S. District Judge Amit Mehta threatened to impose a gag order on prosecutors after Michael Sherwin, its former head prosecutor on the Capitol cases, told CBS’s “60 Minutes” program that evidence pointed toward sedition charges against some defendants.

Earlier "blows" have focused on the issue of pretrial detention, as we've mentioned in the past. 

A charge of sedition - meaning incitement of a rebellion - has not been brought against any of the more than 400 people arrested to date. The most serious charges have been assault, conspiracy and obstruction of Congress or law enforcement.

In other words--and you can be sure that this is not lost on the judges--the prosecutors are asking judges to keep defendants incarcerated without serious charges being brought against them. They're asking the judges to keep the defendants in jail while they investigate--with no guarantee that charges will ever be brought. Does that sound vaguely unfair to you? It gets worse:

Prosecutors are in the early stages of building criminal cases ahead of the trials stemming from an attack that left five people dead including a police officer, forced lawmakers to hide for their own safety and interrupted the formal congressional certification of President Joe Biden’s election victory.

"In the early stages"? That begins to sound--as we'll see from the weakness of some of the evidence and the questionable claims by prosecutors--as if DoJ wants to lock people up indefinitely solely on the basis of DoJ's claims, without justifying this to the judges with some serious evidence. 

But missteps by the government could harm its credibility as accused ringleaders begin asking courts to drop some of the most serious charges.

...

Prosecutors are focused on investigating whether rioters conspired in advance. Sherwin established a task force focused on whether to bring seditious conspiracy charges.

...

On Jan. 19, prosecutors said they believed Thomas Caldwell, a retired U.S. Navy officer from Virginia, had a “leadership role” within the Oath Keepers. The FBI, in a criminal complaint, described Facebook messages Caldwell allegedly sent and received “while at the Capitol,” including one urging him to turn on the gas and tear up the floorboards.

“‘All members are in the tunnels under capital seal them in. Turn on gas,’” it read.

A prosecutor in Florida read those words aloud in February in a bid to convince a judge to detain two of Caldwell’s co-defendants. Prosecutors now acknowledge that Caldwell was not even a dues-paying member of the Oath Keepers and that they lack evidence he ever entered the Capitol.

Do you see a problem emerging here? Caldwell didn't actually belong to Oath Keepers, yet prosecutors told a judge that he had a "leadership role" in that organization? In other settings that's known as a lie. And DoJ wanted to deprive US citizens of their freedom based on that lie. Judges frown on that.

As bad or worse, though, is the use of the message, which has been widely trumpeted: "Seal them in. Turn on the gas." Of course that sounds bad, but ask yourselves this:

Did Caldwell or anyone else have the means to "seal them in"? Was there any means for "turn[ing] on the gas? Is it possible, even very likely, that this was simply hyperbolic rhetoric that is protected by the First Amendment? My answers: Probably not; Probably not; Yes.

Of course it sounds bad. Caldwell and his friends are knuckleheads. Only knuckleheads send messages like that in a total surveillance State (TSS). My strong advice to all readers is: Do not--EVER--associate yourselves with knuckleheads of this sort. Just as loose lips can sink ships, loose lips can also lead to lengthy prison terms or--at a minimum--hefty legal fees.

Now, here's what Reuters' quotes Caldwell's lawyer saying about that message:

There also are questions about the Facebook messages. Caldwell’s lawyer said in a March 10 court filing those messages were sent by two men who were more than 60 miles (100 km) away at the time and had no connection to the Oath Keepers. The comments were apparently satirical, albeit “tasteless,” his lawyer said, and Caldwell never responded to them.

Prosecutors have made no references to these Facebook messages in subsequent indictments and court filings. The judge has since released Caldwell on home detention, saying: “There’s evidence here that I think is favorable to Mr. Caldwell.”

Caldwell has pleaded not guilty.

That's not a good look for the prosecutors, and the judge will undoubtedly examine all their coming submissions with a skeptical eye. But here's the thing. Even if messages of that sort were rhetorical and may not serve as part of the probable cause for bring sedition charges, they may nevertheless end up being admissible for other purposes--as showing intent, for example, for some of the lesser charges. How stupid do you have to be to put yourself in that position?

But Caldwell's case is not the only one in which DoJ has played fast and loose with the truth. Check these examples out:

In January, prosecutors in Arizona who were seeking to detain a man named Jacob Chansley, famously pictured inside the Capitol donning face paint and horns on his head, said they had “strong evidence,” including “Chansley’s own words and actions,” that the “intent of the Capitol rioters was to capture and assassinate elected officials.” They reversed course the next day.

"Strong evidence", but they dropped that claim the next day?

 

In another case, prosecutors said in a March 1 court filing that Ethan Nordean, a member of the right-wing Proud Boys group, “dressed all in black, wearing a tactical vest, led the Proud Boys through the use of encrypted communications.” Prosecutors subsequently acknowledged that Nordean’s cell phone battery died on Jan. 6 and was not functioning the entire day.

Uhhhhh. Was the judge unimpressed with this, call it, carelessness on the part of prosecutors? You betcha: 

A judge denied a prosecution bid to jail Nordean, citing a “dearth of evidence” that he directed others to use or carry weapons. Prosecutors are now making a third attempt to have him detained.

In this context "dearth of evidence" pretty much means NO evidence. 

Now, Reuters, having detailed all these abuses by prosecutors--"at a very early stage"--goes on to quote a former prosecutor who notes that all these abuses can't just be swept under some convenient carpet. The judges will remember:

Michael Ferrara, a former federal prosecutor now with the law firm Kaplan Hecker & Fink LLP, said while bail arguments do not require the same high standard of proof as criminal trials and can sometimes venture into “hyperbole,” some of the potential issues with the evidence in the Oath Keepers case could haunt prosecutors.

If it turns out prosecutors misunderstood the meaning of certain text messages, that would not be a “small error,” Ferrara said. This could “color the way the judge sees this case going forward” and impact outcomes on everything from plea deals to motions to dismiss charges, Ferrara added.

In other words, judges could informally become more demanding of the prosecutors in all aspects of these cases, because they no longer trust them. And that could lead all the way to dismissals. Let's hope.