The attorney for one of the men at the “protest gone wild” at the Capitol Building last January has called on the federal judge to move Thomas Edward Caldwell’s trial out of “Trump-hating” Washington, D.C. Caldwell was the first of the Capitol protesters to be arrested. The coverage of his arrest set the tone for media coverage of all other arrestees in the Department of Justice’s “shock and awe” plan to root out alleged “white nationalist” militancy. Caldwell’s attorney says that’s the problem because it’s untrue.
Attorney David W. Fischer filed a motion to move the trial to the Western District of Virginia where there are fewer people who “despise many things that traditional America stands for” and who have less “petulant intolerance for those with differing views.” He notes that only 5% of Washington, D.C., residents voted for Trump and they hold him in such contempt that they believed the fake news that he was Russian spy.
Prosecutors have delivered four versions of their claims in four superseding indictments against Caldwell, each less histrionic and myth-making than the one before.
Caldwell is a 20-year U.S. Navy veteran who was apparently outside of the Capitol Building on January 6. He is charged with four felony counts: conspiracy, obstruction of an official proceeding, entering and remaining in a restricted area, and tampering with documents or proceedings.
Here is what he is not, according to his attorney. Caldwell is not a “white supremacist,” nor a “white nationalist.” He is not a would-be murderer or a member of a militia group. He did not suggest “gassing” and “executing” members of Congress. He did not lead Oath Keepers, since, presumably, one would have to be an Oath Keeper to lead Oath Keepers. Fischer says his client is not a member.
The motion for the change-of-venue is a near-complete takedown of the efforts undertaken by federal investigators and prosecutors to poison the jury pool and media coverage, which, let’s be honest, isn’t hard. It’s such a scintillating read that it could be a movie.
The defense motion claims that prosecutors “knowingly disseminated false and incendiary claims” that Caldwell and others planned to sack the Capitol and “execute” people when they had no evidence for it – not even after conducting a “cyber colonoscopy” on cell phones and computers. There was no “plan,” Caldwell’s attorney claims. That allegation was based on “a rumor started by government bureaucrats attempting to cover up their incompetent leadership.”
The Government’s misleading charging papers have misinformed the public and caused unnecessary panic in the District, additionally tainting the potential jury pool. Most troubling was the Government’s incendiary—and highly inaccurate– suggestion in previous charging documents that Caldwell and Oath Keepers were chasing down Members of Congress, trying to trap and kill them in the hallways of the Capitol.
Prosecutors shot first and asked questions later. In addition to citing copious examples of prejudicial news stories – including a CNN story claiming Caldwell was part of an “execution squad” that planned to “seal” congressional members in “tunnels under capital” [sic] and “turn on [the] gas” – the acting U.S. Attorney Michael Sherwin gave a “reckless” “prejudicial and extrajudicial” interview intimating that Caldwell was part of a plot to overthrow the government.
In the CBS 60 Minutes interview two months after the charging papers had been issued, prosecutors began walking back their most hyperbolic claims but by then it was too late. The media took the bait and ran with the story that was hand-chummed by prosecutors. Sedition was something with which Caldwell was never charged, but you wouldn’t know it from this exchange:
Scott Pelley: I’m not a lawyer, but the way I read the sedition statute, it says that, “Sedition occurs when anyone opposes by force the authority of the United States, or by force hinders or delays the execution of any law of the United States.” Seems like a very low bar, and I wonder why you’re not charging that now?
Michael Sherwin: Okay, so I don’t think it’s a low bar, Scott, but I will tell you this. I personally believe the evidence is trending towards that, and probably meets those elements.
Scott Pelley: Do you anticipate sedition charges against some of these suspects?
Michael Sherwin: I believe the facts do support those charges. And I think that, as we go forward, more facts will support that, Scott. [emphasis added]
Multiple examples of news stories were cited in the document, noting that the erroneous information was purposely pumped into the media and into Washington’s hyper-partisan political bloodstream.
The defense argues that, as a result of these “unique circumstances,” prosecutorial whoppers, and poisonous media coverage, Washington, D.C., came under emergency orders and became an armed, occupied territory with troops, fencing, roadblocks, and curfews. The lockdown was a physical manifestation of the rhetoric uttered by the president, members of Congress, and local and federal police who all fed the fear that “white supremacists” would attempt another attack.
The 23-page pleading argues, in essence, that the prosecution is political and the DC jury pool is incapable of providing a fair verdict. "District residents not only despise Caldwell’s politics—they despise many things that traditional America stands for," Caldwell claims. pic.twitter.com/a1induoQ8T
— Ken Bensinger (@kenbensinger) July 1, 2021
Would-be jurors’ “psyches” were subject to an assault on their liberty, fear for their safety, and belief that they were imprisoned in an armed encampment … because they basically were, Fischer argues.
Related: The Capitol Riot Rorschach Test
Fischer further argues that the “level of antipathy towards Trump and his supporters in the District is off the charts and makes it impossible to find an impartial jury.” And he made a list of undeniable attacks on the GOP.
District residents, moreover, have hectored Trump-supporting Members of Congress, surrounded them in restaurants (e.g., Ted Cruz), congregated around their homes (e.g., Lindsay Graham, Josh Hawley), aggressively confronted them on the street (e.g., Rand Paul), and engaged in incessant “protests” around former Majority Leader McConnell’s home. District protesters attempted to burn down historic St. John’s church, vandalized millions of dollars of statues and other property, and surrounded the White House in an illegal assemblage during BLM and anti-Trump protests. One Democrat Hill staffer yelled “**** you, Mr. President” as President Trump walked the halls of Congress. The crowd at the Washington Nationals baseball game booed resident Trump during the World Series. An anti-Trump zealot shot up a softball practice just across the Potomac in Alexandria, nearly killing Majority Whip Steve Scalise. The level of antipathy towards Trump and his supporters in the District is off the charts and makes it impossible to find an impartial jury.
This is the jury pool.
The document claims that even the bar in D.C. is tainted against Trump, citing a prosecutor who called Capitol protesters “hillbillies” and “white trash” and another attorney who assumed her client was a racist and gave her a re-education “hate therapy” reading list. Fischer noted about that incident, “Ironically, with the exception of Schindler’s List, the assigned books and movies prescribed by the attorney are largely fictional, heavy on race-baiting and light on facts.”
In a footnote, the attorney went nuclear on the attorney’s reading list for grandma:
The astute observer would note that the perpetrators of the Holocaust were socialists, i.e., NAZIs (“National Socialists”), not small-government Republicans. The Tulsa “massacre” of 1921, moreover, is grossly misrepresented in the History Channel’s chronicle and in hundreds of recent news stories, all of which, for some reason, neglect to mention that the “massacre” started when an armed group of African American men, mistakenly believing that a rape defendant was about to be lynched, shot and killed, in cold blood, nearly a dozen white men, igniting a three day race riot. This historical fact, which even black-owned newspapers in Tulsa at the time acknowledged, perhaps is the reason why the Tulsa “massacre” was called the Tulsa “race riot” for 90 years, until modern race-charlatans rewrote history for political purposes.
He claims that Caldwell can’t get a fair trial in the District because he “is the victim of D.C.- based systemic race-baiting” that went to the top, including “the President, Attorney General, Speaker of the House, prominent politicians, and media personalities [who] have engaged in the most shameful race-baiting regarding Caldwell and other defendants.”
The defense attorney said that the “anti-government” label given to Caldwell will also work against him in a town where most people work for the government.
He’s asking the judge to move the trial to the Western District of Virginia because most of the alleged bad acts alleged by the feds occurred there. It’s a tough sell to get a judge to acknowledge that his jury pool can’t deliver a fair verdict. Fischer notes that even Timothy McVeigh, the Oklahoma City bomber, was given a change of venue from Oklahoma City.
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