Judge orders pretrial release of key Oath Keeper charged in Capitol attack

Caldwell’s role in the Capitol siege gained notoriety after prosecutors unearthed private messages he exchanged with fellow Oath Keepers discussing plans to travel to Washington and participate in efforts to stop the certification of the 2020 election results. Caldwell discussed setting up a “quick reaction force,” stocked with weaponry, outside of D.C. limits in the event Oath Keepers opted to resort to violence.

The decision is a setback for the Justice Department as it seeks to show that some elements of the Jan. 6 attack on the Capitol were part of sophisticated and organized cells intent on violently blocking the transition of power between Donald Trump and Joe Biden. Caldwell is one of about a dozen Oath Keepers arrested as part of the attack.

At a hearing Thursday, a prosecutor said 15 or more people could eventually be charged in the Oath Keepers conspiracy case. More than 300 people have been arrested overall for participating in the Capitol assault, which Attorney General Merrick Garland has described as his first priority as the new head of the Justice Department.

Many of those arrested have cited former President Donald Trump’s monthslong campaign to convince supporters the election was stolen as the reason they were moved to march on and breach the Capitol.

Though judges have largely rejected that as a criminal defense, Trump’s role has been an inescapable part of the narrative. Mehta repeatedly wondered whether the Capitol breach may have been an unplanned aspect of the Oath Keepers’ vaguer intentions, and only arose after Trump torqued them up at a rally on the Ellipse that morning. He repeatedly referred to the Oath Keepers’ “fantastic” notion that they had been called upon to right some imaginary wrong.

“It’s unfortunate that they fell victim to those ideas,” Mehta said.

Prosecutors had argued that Caldwell presents a risk of violence because he and his allies expressed continued belief that the election was stolen even after Jan. 6.

Those factors still exist for them,” said assistant U.S. Attorney Kathryn Rakoczy, “that the current political order is something that is problematic and should not be followed.”

The prosecutor noted that Caldwell told a fellow Oath Keeper in a post-Jan. 6 text message to take solace “because what they did was righteous.”

Rakoczy said the group was clearly preparing to commit violence, although she acknowledged the timing and the target was not clear in advance.

“The group itself as they were making these plans did not know precisely the way in which force and violence might be needed to support this plan,” she said. “They were prepared to do whatever is necessary to stop that certification. … The bottom line from the government’s perspective is they were prepared to do violence in whatever ways they needed to.”

Still, Rakoczy conceded that there is no proof right now that anyone in the group spoke or exchanged messages in advance of Jan. 6 about breaching the Capitol. “We do not have at this point someone explicitly saying: our plan is to enter the Capitol,” she said.

Mehta acknowledged that the evidence supports the charges that the government has brought against Caldwell but that it falls short of the burden they need to prove he’s a danger to the community if released pending trial. Mehta instead imposed a strict series of release conditions, denying Caldwell access to the internet, firearms and contact with others allegedly associated with the Capitol assault.

Mehta also appeared moved by evidence that Caldwell suffers from severe health issues that require regular medical attention. Caldwell’s attorney David Fischer said his client has “the body of an 85-year-old man” and that his suffering in pretrial detention to this point has been motivation enough to abide by any conditions Mehta would offer.

Prosecutors said they were considering, but had not yet decided whether to appeal the ruling. Mehta, though, rejected a request to stay his decision pending a possible appeal.

Mehta’s decision reversed one he made a month ago to hold Caldwell pending trial. The judge said Friday he was not aware of all the relevant facts last month, including a two-hour interview Caldwell gave to the FBI, his cooperation in allowing searches of his home and computer, and the lack of evidence of Caldwell’s involvement in planning to breach the Capitol.

Several other members of the Oath Keepers remain detained. They include Jessica Watkins and Donovan Crowl, who were seen together in the Capitol rotunda in various publicly posted videos. Connie and Kelly Meggs, two Oath Keepers based in Florida, have also been detained. Several other Oath Keepers who provided security on Jan. 5 and 6 to Trump associate Roger Stone have also been charged with breaching the Capitol, but they have not been connected to the broader alleged conspiracy.

Fischer, who had to instruct Caldwell to stop vocally interrupting the proceedings, painted a picture of Caldwell as a decrepit military veteran whose back problems were so severe as to make his portrayal as a ringleader of the attack laughable. Caldwell sat outside the Capitol with his wife near a fountain hundreds of yards from the building’s entrances, Fischer said, and had no access to the encrypted communications channels used by Oath Keepers who went inside the building.

Fischer said any reference his client made to use of weapons were simply to defend his group if it came under attack by Antifa or if Trump took extraordinary action to remain in power and left-wing activists mounted an attack.

Mehta seemed to acknowledge that much of the planning revolved around bizarre contingencies, like the notion that Trump would invoke the insurrection act and call in the military — a popular belief among extremist groups aligned with Trump and QAnon conspiracy theorists. The judge said it was clear that Caldwell had been involved in “preparation for an Armageddon-type solution to defend the president of the United States, who was claiming the election had been stolen from him.”

Mehta repeatedly cautioned that his ruling should not be seen by Caldwell or others as diminishing the gravity of the attack on the Capitol.

“Don’t take this, Mr. Caldwell, as reflective of my view of the seriousness of what you’ve been charged with or of your conduct,” the judge said as the hearing concluded. “I’ve got standards I’m supposed to apply under the law. … Make no mistake, Mr. Caldwell, if you violate my conditions you will be back in jail very quick.”


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