Judge rules only some Zello chats are admissible in Oath Keepers trial
A member of the Oath Keepers looks on as supporters of Donald Trump attend a rally protesting the 2020 election results in Washington, D.C., on Jan. 6, 2021. - Bryan Smith/Zuma Press/TNS

The federal judge overseeing the Oath Keepers’ sedition trial has ruled that an order given by an anonymous user on the Zello app to “arrest “these f***ing treasonous bastards” in Congress as defendant Jessica Watkins was inside the Capitol on Jan. 6 is inadmissible as evidence.

In an order handed down on Monday, Judge Amit Mehta also said a recommendation by another user to “find out where the tunnels exits and block them too” likewise cannot be played for the jury. Mehta said the statements were “highly inflammatory,” and “have the potential to be highly prejudicial to defendants.”

“1%Watchdog,” who created the “Stop the Steal J6” Zello channel, issued a command while Watkins was walking towards the Capitol with other members of the Oath Keepers: “Citizens arrest. Arrest this assembly, these f***ing treasonous bastards.”

Mehta rejected an argument by the government that the statement provides context for Watkins’ actions inside the Capitol, writing that the connection between the Zello channel host’s statements and Watkins’ conduct was “speculative and attenuated.” He noted that Watkins did not respond and did not enter the Capitol until 30 minutes later. Instead, Mehta wrote, Watkins “connected with her co-defendants Kelly Meggs and Kenneth Harrelson,” adding that the statement by “1%Watchdog” was “sufficiently distant from Ms. Watkins later actions and, for that reason, does not provide context for them.”

The Zello chats were recorded in real-time during the assault on the Capitol by Micah Loewinger, a reporter for “On the Media” at WNYC. The open “Stop the Steal J6” channel attracted about 170 subscribers, including Watkins and two users who have been described by the government as “unindicted co-conspirators.”

While the government will not be able to present the statement from “1%Watchdog” to the jury, Judge Mehta has already given credence to similar evidence. In an April 2021 order denying pretrial release to Meggs, Mehta cited evidence that Meggs and other Oath Keepers walked to the north side of the Capitol toward the Senate chamber, only to be turned away by police officers. Rebuffed in their effort to gain access to the Senate, the Oath Keeper then reportedly turned south and walked towards the House chamber.

Mehta cited a Facebook message between Meggs and an unidentified person on the evening of Jan. 6 in which the unidentified person told Meggs he “was hoping to see Nancy’s head rolling down the front steps.” Meggs reportedly replied, “We looked forward [sic] her.”

While ruling that the Zello channel host's call to arrest members of Congress is inadmissible, Judge Mehta said he will allow all of Watkins’ statements and some of the statements of other participants to be admitted into evidence.

Judge Mehta ruled that the government can present three statements by a Zello user named “FreedomD0z3r” who is described by the government as an unindicted co-conspirator and named “Person 32” in court documents.

“From what I’m hearing, they have breached the Capitol, they are inside, still fighting the police,” Person 32 reportedly said at 2:19 p.m. “Can we get a confirmed on that?”

A couple of minutes later, Person 32 reportedly addressed Watkins on the Zello chat, saying, “Jess, pull as much intel as you can.”

And at 2:46 p.m., Person 32 reportedly said, “Get it, Jess. Do your s***. This is what we f***ing lived up for. Everything we f***ing trained for.”

Judge Mehta also said he will allow three statements from other participants reporting that the House was called back into session, although the session was later suspended again until Congress ultimately reconvened in the evening to complete the certification of the electoral vote. Mehta said the statements were admissible to give context to Watkins’ subsequent statement.

“We’re on the rear mezzanine behind the dome,” Watkins reported to the chat participants. Mehta said the statement was admissible as reflecting Watkins’ state of mind at the time and showing that she was inside the Capitol building “during the commission of the alleged offenses.”

Judge Mehta rejected an argument by the government that non-Oath Keepers speakers were acting as “eyes in the sky” for Watkins.

“They are not instructing Ms. Watkins on what to do,” Mehta wrote. “Nor did Ms. Watkins take any apparent action in response to the statements. At most, they appear to be expressing their personal views or communicating play-by-play of the events as they unfolded on television or were reported in the media.”

The government had argued in a brief submitted to the court over the weekend that participants on the chat who were watching the events remotely and others present in Washington, DC “provided up-to-the minute information that helped guide Watkins, Meggs, Harrelson and other conspirators as they approached the Capitol.” The government cited messages like, “Barricades are being challenged,” and, “I just witnessed about four vans full of riot control turning left of Madison onto 3rd.”

“This ‘eye in the sky’ information is akin to law enforcement aerial teams relaying vital information to help ground teams navigate dangerous circumstances — just like Watkins and her co-conspirators faced on January 6 as they marched through throngs of other rioters and riot police to breach the Capitol,” the government argued.

Many of Watkins’ own statements are likely to come up during the trial, which is scheduled to begin next week.

At 1:49 p.m., after “1%Watchdog” opened the channel to the public, Watkins responded, “Right, brother. We’re boots on the ground here. We’re moving on the Capitol now. I’ll give you a boots-on-the-ground update here in a few.”

A couple of minutes later, she added, “We have a good group. We’ve got about 30, 40 of us. We’re sticking together and sticking to the plan.”

Judge Mehta ruled that the statements expose Watkins to criminal liability because they provide evidence of “concerted activity.” Because they are considered statements against interest, Mehta said, “a reasonable person in Ms. Watkins' position would have made these statements only if she believed them to be true.”

Watkins’ statements can also be used as evidence against her co-defendants, Mehta ruled.

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