In both the case against Proud Boy Leader Ethan Nordean and accused Oath Keeper Thomas Caldwell, the defendants are arguing that the government has made errors about their activities.

With regards to the former, Nordean’s wife submitted a sworn declaration stating, among other things, that the passport the government has pointed to as evidence that Nordean might flee was not — as the government claimed — on the dresser by the bed, but instead inside a jewelry box on the dresser. She also claimed that Nordean received a Baofeng radio on January 7, the day after the insurrection, and that to her knowledge, he “did not possess” one before that date.

The government responded with a picture showing that, at a time they claim precedes the search, a picture they took to show the weapons they had secured shows the passports were on the dresser.

Additionally, she claimed that Nordean’s cell phone “was without power” on the day of the insurrection, which is irrelevant to why he stashed it in the drawer or whether it would have useful evidence.

Ms. Nordean responded with her own picture showing that, in a picture taken on December 8, 2020, the jewelry box was closed.

This would be a matter of he-said she-said, FBI agents against the wife of a suspect, except for one thing. In her original affidavit, Ms. Nordean tries to rebut the government’s focus on the Baofeng (the government claims the Baofeng he got on January 7 is a different one than the one he used the day of the riot, but in any case the one they seized was set to the channel used by the Proud Boys during the riot), she noted that “it is [her] understanding that his mobile phone was without power throughout January 6, 2021,” a detail the defense relied on to suggest, first of all, that the government was purposefully withholding that detail, and that that — and not the evidence of the Proud Boys discussing obtaining the radios and using a specific channel — is why the government had focused on the Baofeng.

But it does the opposite. A bunch of the Proud Boys brought live cell phones to their insurrection on January 6. William Chrestman appears to have tried avoiding using cell coverage, but got geolocated using his Google account. For Nordean to spend an entire day his phone powered off suggests an operational security that many of his buddies didn’t have. It certainly suggests he might have the wherewithal to search for a passport he might make use of, suggesting it’s possible that he, not the FBI, took the passports out of the jewelry box (though they would have been out there for a day because, per Ms. Nordean, Ethan wasn’t home the night before the raid.

Meanwhile, Thomas Caldwell says the government has similarly misunderstood everything about his involvement in an insurrection. There’s a claim he makes that I find quite compelling: that Jessica Watkins and Donovan Crowl hid out at his home — and tried to lose a tail on the way there — to hide from the press, not the FBI.

Contrary to the Court’s understanding, Caldwell informed FBI agents that Watkins and Crowl contacted him—not vice-versa–and requested to come to his farm to get away from the media, not law enforcement.22 That is, subsequent to a New Yorker article that identified Watkins and Crowl as being involved in entering the Capitol, their small town Ohio residences were surrounded by scores of media. 23

22 Undersigned counsel reviewed over a thousand social media messages in discovery. Multiple messages from Watkins and Crowl express a desire to run away from the media throng that descended on their small Ohio hometown. Not one message evinces an intent to avoid authorities, who had not yet charged the two with a crime. In fact, Watkins’ mother, who is not a suspect in this case, fled Ohio and hid from the media in Florida. Also, discovery confirms that Watkins and Crowl reached out to Caldwell, not vice-versa.

23 Similarly, the Government’s claim that Caldwell advised Watkins and Crowl to “avoid law enforcement” by making sure that they were not followed to his farm is misplaced. Caldwell’s concern was that the pair weren’t followed by the media to his farm. Caldwell did not want a hundred reporters camped outside his farm.

But in the rest of the filing, Caldwell spins a fairy tale while at the same time he admitted he spends a lot of time spinning fairy tales.

To put his personality in more context, Caldwell is an amateur screen writer. Specifically, Caldwell has written screenplays with military style plots.17 Undersigned counsel has read a couple of these screenplays, which are heavy on hyperbolic military language. To give the Court a sample of his writings, in one screenplay Caldwell depicts a “dog fight” between rival aircraft, with one pilot radioing out “Buzzard One, this is Slingshot, I got two bogies on my six; say again, two bogies on my six; May-day, May-day.” What the Government misunderstands is that Caldwell’s language and personality center around his military career and his addiction to Hollywood.18

Ultimately, the fairy tale Caldwell spins in this filing is that he didn’t conspire to interfere with the vote count, but instead was just aiming to hunt Antifa.

He explained his contacts with the Oath Keepers, who he viewed as a self-styled group of patriots who sought to protect Trump supporters from Antifa and who provided security at Trump events. The concerning social media posts Caldwell made, he explained, all referred to fear that Antifa would attack Trump supporters on January 6th . 21

21 This fear was well-founded. In fact, contrary to the Government’s suggestion that Antifa is a virtuous group with a few bad apples, this organization is a domestic terrorist organization that has taken over cities like Portland and Seattle, burned buildings and churches, killed and injured police officers, defaced and destroyed public monuments, and violently injured hundreds of Trump supporters across the country. In fact, just a month before the Capitol was breached, Antifa attacked elderly Trump supporters at a December rally in Washington.

As part of this fairy tale Caldwell argues that the government has the timeline of the Zello chats included in the evidence against him, and therefore mistook a plan to guard people like Roger Stone for a plan involving the Capitol.

The Court placed great weight on this evidence, as it purported to show a specific, contemporaneous plan to breach the Capitol. In court papers, the Government described the Zello communications as follows:

“At the approximate 5 minute mark, the voice believed to be [codefendant] Watkins reports, “We have a good group. We have about 30-40 of us. We are sticking together and sticking to the plan.”

“At the approximate 7 minute 44 mark, an unknown male states, “You are executing citizen’s arrest. Arrest this assembly, we have probable cause for acts of treason, election fraud.”

The voice believed to be WATKINS responds, “We are in the mezzanine. We are in the main dome right now. We are rocking it . . .[.]” ECF 1-1, ¶27 (ZMF-21-119) (second criminal complaint) (emphasis added).9

The latest indictment includes the same chronological representation, only without time-stamps. The Government’s inference is clear: The Oath Keepers had a plan to invade the Captiol and arrest elected officials, discussed this “invasion plan” at the “5 minute mark,” and were inside the Capitol a few minutes later executing the plan (at the 7:44 mark). Unfortunately, the Court has been misinformed by the Government. Upon receipt of discovery, undersigned counsel discovered that the Government’s Zello evidence actually consists of a National Public Radio (NPR) report, which aired random snippets of Zello communications. The above timestamps the Government referenced are time-stamps in the NPR report, not from Zello. In other words, the referenced Zello communications did not take place 2 minutes and 44 seconds apart in real time.

Ironically, after listening to these Zello communications, the Government’s smoking-gun proof of premeditation fizzles. Specifically, it is clear that the communication regarding “sticking to the plan” happened several hours before the Capitol breach, and probably in the very early morning, as there is no crowd noise in the background. 10 By contrast, the second Zello communication (from inside the Capitol) had substantial background noise.

10 Published reports suggest that as many as 500,000 demonstrators showed up to the rally. The fact that the audio reveals no crowd noise suggests that this particular Zello communication happened before hundreds of thousands of rally-goers entered the streets of Washington.

I’ll return to the temporal claim later. But there are several things that mark this story as a fairy tale. First, he’s complaining that the male voice has no background noise whereas Watkins’ does have background noise. Caldwell is comparing messages from different people in different places.

Moreover, while he nods to the NPR original of this (which he doesn’t cite, but I assume is this WNYC interview), he doesn’t acknowledge two sets of texts that the government has yet to rely on (but surely will), which make it clear the plan was prospective and tied to the Capitol. First, from two blocks away, Watkins reports that everyone is marching on the Capitol.

MILITIA What kind of numbers do we have going into the capital? Any estimates? What percentage of the crowd is going to the capital?

WATKINS One hundred percent. Everybody’s marching on the capital. All million of us. It’s insane. We’re about two blocks away from it now and police are doing nothing. They’re not even trying to stop us at this point. [END CLIP]

And then, a block away, Watkins informs her interlocutor that she’s going to go silent because “Imma be a little busy.”

WATKINS Yeah, we’re one block away from the Capitol now. I’m probably going to go silent when I get there because Imma be a little busy.

INFORMANT Hey, my girlfriend is at the Capitol right now and she said that cops are coming in from the right of the building. [END CLIP]

Even assuming the rest of the excerpts are a jumble (and I expect we’ll get clarity on this point shortly), it’s clear that Watkins’ objective is the Capitol, not guarding Roger Stone.

But there’s one more part of the texts that make that clear: the channel name. “Stop the Steal J6” The Oath Keepers didn’t arrange radio communications to keep Roger Stone safe. They arranged radio communications to stay in touch as they jointly assaulted the Capitol.

But there’s a bigger tell in this filing of fairy tales, the filing that argues Caldwell’s communications can’t be taken literally because he lives in a fantasy world, presents a claim that he believed Antifa presented a serious threat, and then claims that Caldwell’s denials must be believed because, “The word of a 20-year military veteran with no prior criminal record is evidence, and it is strong evidence, of his innocence.” Caldwell tells a fairy tale about the crimes of which he is accused.

Caldwell absolutely denies that he ever planned with members of the Oath Keepers, or any other person or group, to storm the Capitol. Caldwell absolutely denies that he obstructed justice. 3

The issue as to whether Caldwell violated 18 U.S.C. § 1752(a)(1) (Entering and Remaining in a Restricted Building or Grounds) is still being researched by undersigned counsel. Obviously, however, this charge is the least of the Court’s concerns in weighing the factors under the Bail Reform Act.

Caldwell is personally accused of two counts of obstruction. The first, 18 U.S.C. § 1512(c)(1), accuses him (like Graydon Young) of attempting to delete damning Facebook content, an accusation this filing rebuts.  But he is singularly and as part of the conspiracy also accused of violating 18 U.S.C. §§ 1512(c)(2), 2. The object of the conspiracy is not, as Caldwell would suggest, to storm the Capitol. It was, instead, to stop the electoral vote count.

The purpose of the conspiracy was to stop, delay, and hinder Congress’s certification of the Electoral College vote.

This is an accusation his entire fairy tale story doesn’t deny, nor does his narrative about his own actions that day (or the planning leading up to it) rebut the claim.

As I’ve said, at least one part of Caldwell’s story may well be true: that Watkins and Crowl were hiding out from the press, not (yet) the FBI. But none of Caldwell’s re-imagining of the record even attempts to rebut that he and his terrorist buddies were attempting to interfere with the counting of the vote as laid out in the Constitution.

Then again, Judge Mehta may not be his desired audience. Instead, his claim this was all about Antifa may be an attempt to feed GOP efforts to deny they encouraged a terrorist attack on the Capitol.

Update: Took out a reference to Nordean’s phone in his daughter’s drawer. That was William Chrestman, not Nordean. I thought I had removed it.

Update: Beryl Howell granted Nordean home detention yesterday, judging that the government (which backed off some of its earlier claims about Nordean’s role) had not proven that Nordean had directed the breach of the Capitol.