Oath Keeper defense laden with conspiracy theory; plus witness testimony from Capitol Police

Oath Keeper defense laden with conspiracy theory; plus witness testimony from Capitol Police

Day 15 of the Oath Keepers seditious conspiracy trial featured defense attorneys making repeated implications that it was U.S. Capitol Police who invited rioters inside the Capitol building on Jan. 6, 2021. 

This is a conspiracy theory long-debunked and easily disproven with the viewing of less than 20 minutes of closed-circuit security footage from the eastern rotunda door, for one. That footage is embedded below, courtesy of NBC News. Jurors also saw this footage Tuesday. 

This conspiracy theory was first championed by the right last year but can also be debunked if one chooses to simply read signs near the door that state perfectly clearly: the door is an emergency exit and will unlock on its own if pushed for 15 seconds. 

Nonetheless, these facts did not preclude the defense from suggesting foul play by officers or other “provocateurs” multiple times Tuesday. Overall, the defense’s cross-examination of witnesses including former FBI Agent Whitney Drew and U.S. Capitol Police Officer Ryan Salke drew mild exasperation from presiding U.S. District Judge Amit Mehta.

Questions were often plodding and drawn out by defendant Kenneth Harrelson’s attorney Brad Geyer as Geyer moved through video footage that he insisted featured “provocateurs” among Trump’s mob of supporters.

Geyer has suggested at earlier points during the trial that these “provocateurs” were members of “antifa” or leftists or supporters of the Black Lives Matter movement. The FBI has said for more than a year that there is no credibility to such claims and that the violence at the Capitol was not the product of “antifa” but an unruly mass of Trump supporters. 

Geyer attempted to have jurors cast doubt too on the authenticity of the Justice Department’s evidence—another core strategy deployed by the defendants including Rhodes, Kelly Meggs, Jessica Watkins, Thomas Caldwell and Kenneth Harrelson.

But with Geyer’s questioning of Agent Drew stilted and his time to cross-examine often devolving into the lawyer playing video without asking the witness a relevant question, it was sidebar after sidebar with Judge Mehta.

It is questionable whether the defense’s strategy ultimately plays well with jurors and a verdict is easily weeks away. 

One video Geyer let run longer than he was directed to on Tuesday included a clip of rioters and protesters on the Capitol steps singing the National Anthem. Geyer suggested the Justice Department manipulated the clip to leave out two stanzas. Geyer also pointedly remarked to the witness under cross that the government’s evidence was slapped with “Joe Friday” facts, referencing the lead character in the fictional television cop show Dragnet. 

Juli Haller, one of the defense attorneys for Kelly Meggs, was arguably little better with witness cross-examination after the government took direct testimony from Ryan Salke, a U.S. Capitol Police officer and former U.S Marine who fought off the mob for hours on Jan. 6. 

Salke offered compelling testimony under oath, describing a harrowing scene that pushed him to the brink.

He wasn’t even meant to be on his shift that day but picked up a friend’s shift. When the day started, things seemed normal enough, he said.

But as morning changed to afternoon, so did the tone of the crowd. As former President Donald Trump made his speech at the Ellipse and word spread that then-Vice President Mike Pence was not going to unilaterally intervene in the certification of the election, things got dark. 

Salke recalled hearing Trump’s speech at the Ellipse played on megaphones by those in the crowd around the Capitol. People held their cell phones to the bullhorn so Trump could be heard. There were people watching video of the Senate floor. Salke recalled the chanting by one man who stood on a large flower pot outside as he whipped people into a frenzy.

Chants of “Pence isn’t backing Trump!” and “Down with Pence!” and “Kill Pence!” and “Fuck Pence!” became deafening. 

Salke, who was on the Capitol’s east side on Jan. 6, told jurors he kept searching for higher ground on the stairs as barricades were eventually breached and rioters came streaming toward him and entry points to the Capitol. 

When prosecutor Louis Manzo asked Salke why he didn’t start making arrests when he saw interlocking bike racks used as barricades toppled, the officer matter-of-factly testified: “There were too many people. If we tried to effect an arrest it wouldn’t have worked.”

He also said he only thought of dischargin his service weapon one time but thought better of it. That moment came when a flashbang was lobbed at him. 

Telling jurors he never invited a single rioter inside, nor did he believe any of the rioters or defendant Oath Keepers intended to help him or other officers on Jan. 6, Salke said he took chemical spray to the face and was beaten with a flagpole over his head. Frozen water bottles were also whipped at him and others.

Salke was forced to retreat from the stairs and eventually inched close enough to the eastern rotunda door that he could turn his head momentarily to peer inside, he said. 

When he did this, he told jurors of a cold realization that washed over him.

There were already rioters inside. Now, he testified, he realized that even if he survived the mob on the stairs, he would have an altogether different and dangerous element to contend with once indoors. And indoors, he said, he would go. It was his duty to protect the building and the lawmakers inside.

Today, Salke told jurors, he sees clips from Jan. 6 and still struggles to comprehend the absurdity of what he witnessed and what he experienced, including seeing someone bring in a nearly 90-pound German shepherd to the riot.

Though he did not reference the dog or defendant by name, that would almost certainly be a reference to Warrior, a dog brought to the Capitol by Oath Keeper Jonathan Walden. 

“I’m looking at this intelligent man that brought this dog to a riot,” Salke told prosecutors dryly as he reviewed footage of himself from the Capitol interior. 

The officer said he only addressed the man and tried to move him out of the way because he didn’t want the dog to be trampled. 

It was far from the worst he saw on Jan. 6.

Salke also told jurors on Tuesday once he finally got inside of the Capitol, he was less than 15 feet beyond the doors when he came upon fellow officers holding up an IV bag connected to a person laying on the ground.

Three officers kept trying to perform CPR on the person.

Salke told the officers it was clear they were deceased. 

Emergency responding officers could not get into the building because of the mob, Salke said. This forced the police on site to follow protocol which requires them to keep performing life-saving maneuvers when they are unable to have someone officially declare the person deceased.

Defense attorney Juli Haller seized on Salke’s testimony during cross, noting how he said that arrests couldn’t be made because there were too many people around him and that it was unsafe to arrest someone he couldn’t detain securely.

The suggestion was seemingly rooted in the defense’s argument that police wanted help from Oath Keepers on Jan. 6.

What would have helped him on Jan. 6 is if no one showed up, Salke said. 

Haller also tried and failed to elicit testimony from Salke about whether the mob was a mix of peaceful and aggressive people. 

“Everyone I saw tried to get into the Capitol and from what I saw, nobody was peaceful,” Salke said. 

The trial is now in its fourth week. Rhodes revealed on Monday that he contracted Covid-19 and has not appeared in court since testing positive. On Tuesday, appearing on a remote teleconference line, Rhodes agreed to waive his appearance for the next eight witnesses for the prosecution.

On Wednesday, the prosecution expects to call U.S. Capitol Police Officer Harry Dunn, U.S. Capitol Police Special Agent David Lazarus, and Secret Service Agent Lanelle Hawa. 

Dunn will testify about his experience interacting with the Oath Keepers on Jan. 6. Lazarus witnessed the interaction. Hawa was in charge of security measures for Pence on Jan. 6. 

Other witnesses Rhodes has agreed to waive his in-person appearance for include D.C. Metro Police Department Officer Christopher Owens, Capitol Architect employee Jason McIntyre and Tyler Harmon, a custodian of records at Facebook.

Harmon, prosecutors say, will be able to testify about evidence allegedly deleted by defendant Thomas Caldwell.

McIntyre will be able to discuss damage to the Capitol and Owens has insights about Oath Keepers he encountered while guarding a hallway.

Rhodes also agreed to waive his appearance for cross-examination of former FBI Agent Whitney Drew on Tuesday. The former Oath Keeper ringleader will receive transcripts from the proceedings daily, Judge Mehta said.

It will be at least another week until prosecutors are expected to summon Oath Keeper witnesses who flipped on Rhodes like Joshua James. 

For complete details of what happened today, check out the live blog or the mega-thread on Twitter. 

Good morning from DC for Day 15 of the Oath Keepers sedition trial. After we learned yesterday that Stewart Rhodes tested positive for Covid, court reconvenes to determine next steps & whether Rhodes will waive his appearance for certain witnesses so trial can continue w/o pause. pic.twitter.com/ARPrpsJhsx

— Brandi Buchman (@Brandi_Buchman) October 25, 2022

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