A Twitter post by the U.S. House Jan. 6 Select Committee purporting to contain walkie-talkie traffic between Oath Keepers at the Capitol on Jan. 6 is actually “a recording of people watching TV,” a former Oath Keepers attorney contends.
Jonathon Moseley, who formerly represented Oath Keepers defendant Kelly Meggs, said the audio snippets released by the Jan. 6 Committee are part of a nearly 2.5-hour recording.
The committee’s Twitter post paired the audio clips with an unrelated video of the Oath Keepers to make it appear it was Oath Keepers speaking on radios at the Capitol, he said.
The Select Committee has obtained a recording of communications over a walkie-talkie app among Oath Keepers who were inside the Capitol and others who were sharing intelligence from elsewhere.
Listen to how they reacted to President Trump’s 2:38 tweet in real-time. pic.twitter.com/0ZzJ1E37w0
— January 6th Committee (@January6thCmte) September 15, 2022
“I can speak from personal, direct, first-hand knowledge that this is a 2-hour, 20-minute recording of people watching TV,” Moseley told The Epoch Times in a statement on Sept. 18. “This is NOT Oath Keepers at the Capitol.”
Defense attorneys in several Oath Keepers criminal cases have complained to the courts for months that these kinds of utterances from the Jan. 6 Select Committee will poison the jury pool, making it impossible for defendants to get a fair trial in the heavily Democratic District of Columbia. Numerous Oath Keepers motions for trial delays or changes of venue have been denied.
The controversial Zello transmissions were under court seal when the Jan. 6 Committee published its Twitter post on Sept. 15.
The highest profile Oath Keepers case goes to trial on Sept. 27. Oath Keepers founder Elmer Stewart Rhodes III and four other defendants—Kelly Meggs, Jessica Watkins, Kenneth Harrelson, and Thomas Caldwell—are charged with seditious conspiracy to attack the Capitol and a range of other Jan. 6-related crimes.
“The J6 Committee is operating as a partisan campaign PAC,” Moseley said. “Its public relations releases are not legislative actions. It is a Democrat campaign PAC for the November 2022 elections.”
The Epoch Times reached out to a spokesman for the Jan. 6 Select Committee for comment, but did not receive a reply.
The disputed Zello communications used by the Jan. 6 Committee have been part of a month-long fight in U.S. District Court between federal prosecutors, who want to introduce them as evidence, and Oath Keepers defense attorneys, who argued they are inadmissible hearsay.
District Judge Amit Mehta on Sept. 19 ruled (pdf) that the statements made by the user—alleged to be defendant Watkins—are admissible as they are her first-hand impressions of conditions on the ground. Some of the statements made by other Zello users on the audio chat will be admitted as they provide context to what the user was saying, the judge said.
Most of the inflammatory statements made by the chat leader “1% Watchdog” will be barred from evidence as being highly prejudicial, Mehta ruled.
Tying Audio to One Oath Keeper
Although the recording from the smartphone app Zello was given to Moseley and other defense attorneys in October 2021, it was only in late August 2022 that the U.S. Department of Justice said it would seek to admit parts of the 69-page transcript as evidence against the Oath Keepers, according to court records.
Prosecutors allege Oath Keepers defendant Watkins spoke on Zello about what was happening in the Capitol, but defense attorneys say there is no evidence that she is the speaker.
Zello is a phone application that mimics the push-to-talk features of a walkie-talkie, except that it uses cellular networks and internet connectivity to link users. It allows smartphones to operate like the popular Nextel push-to-talk phones developed and popularized in the 1990s. Based in Austin, Texas, Zello Inc. offers a variety of service plans for a monthly fee.
The full 2 hour 22 minute audio file of the Jan. 6 broadcast on the “Stop the Steal J6” channel on Zello, referenced in the Oath Keepers criminal conspiracy case.
Prosecutors allege that Watkins is heard on the recordings, although no Zello user account could be directly tied to her name or cell phone. The FBI found no Zello-related audio files on her phone, according to court records. Prosecutors contend Watkins was the user “OhioRegularsActual–Oathkeeper.”
A recording of the public Zello transmissions was discovered on the audio-sharing website Soundcloud by two journalists in 2021. Zello does not store recordings from chats or channels.
In a pretrial conference on Sept. 14, Assistant U.S. Attorney Jeffrey Nestler told Mehta a law enforcement officer could testify at trial that the voice heard on parts of the recording belongs to Watkins.
A Zello channel named “Stop the Steal J6,” created by user “1% Watchdog,” was opened to the public at 1:48 p.m. on Jan. 6, court records state. Zello users had to subscribe to the channel to have access. All subscribers were able to comment on the public channel.
The conversations included unidentified individuals with account names including “1% Watchdog,” “Gen. Mark Davis CFA” and “iWatch Director Laureen.”
Prosecutors told defense attorneys they “are not able” to provide the true names of those Zello users. User “Airborne America” was identified as an Illinois Oath Keepers member referred to in court records only as “Person 33.”
Prosecutors said they will not argue that “1% Watchdog” is any of the Oath Keepers defendants, although court records indicate they once incorrectly believed it was defendant Rhodes.
The most explosive statements on the recording came from “1% Watchdog,” who liberally sprinkled his commentary with profanity. He led discussions with other Zello users, some of whom were watching television news at the time.
“There’s no safe place in the United States for any of these mother[expletive] right now, let me tell you,” he said, referring to members of Congress.
After President Donald Trump posted to Twitter that those at the Capitol should support Capitol Police and do no harm, “1% Watchdog” said, “That’s saying a lot by what he didn’t say. He didn’t say not to do anything to the Congressmen.”
Earlier, a voice that prosecutors claim was Watkins commented as she walked toward the Capitol, “Trump’s been trying to drain the swamp with a straw. We brought a Shop-Vac.” Mehta ruled that comment will be admissible at trial.
During the Sept. 14 hearing, Mehta questioned whether the audio would be proof of Watkins’ state of mind. He said he would like to know more about “1% Watchdog” and whether he had any connection to Watkins.
“I’m not sure he’s anything more than a guy spouting off on a Zello chat,” Mehta said.
‘Sticking to the Plan’
Defense attorneys contend the government is trying to use the comments of unnamed outsiders who are not unindicted co-conspirators as evidence against the Oath Keepers.
“No defendant in this case, much less none of the indicted or unindicted co-conspirators sent a message or responded on this chain of communications that the government has highlighted—or anywhere in the 69-page transcript,” defense attorneys Juli Haller and Stanley Woodward wrote in a motion to suppress.
At 1:49 p.m. on Jan. 6, prosecutors contend that Watkins said: “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. We have a good group. We have about 30, 40 of us. We’re sticking together and sticking to the plan.” Mehta ruled this comment will be admitted.
The user alleged to be Watkins went silent for nearly 30 minutes, during which the other users continued to comment on news updates from the Capitol. Most of those comments will not be allowed into evidence, Mehta ruled.
At 2:31 p.m., the user alleged to be Watkins reported on window vandalism on the east side that she blamed on Antifa.
“It was not actual patriots. The police confronted them when they were smashing out the windows. They said, ‘[expletive] Trump; we don’t care about this.’ And they’re just out there smashing windows. So, I feel like it’s kind of a setup, really. They have the riot cops out now.”
A user called “FreedomD0z3r91” responded: “Get it, Jess. Do your [expletive]. This is what we [expletive] lived up for. Everything we [expletive] trained for.” Mehta ruled that comment will be allowed as a statement of a co-conspirator.