The Justice Department’s ‘Troubling’ Discovery Delays

It’s been almost seven months since the FBI conducted a pre-dawn raid at the Virginia farm of Thomas and Sharon Caldwell. Dozens of armed agents broke down their front door, ransacked their home, and arrested Tom Caldwell on January 19. A week later, a grand jury indicted Caldwell and two other alleged Oath Keepers for various crimes related to their participation in the Capitol protest on January 6.

Despite the fact Caldwell never entered the building, carried no weapon, and assaulted no one, the Justice Department sought to keep the 66-year-old former Navy lieutenant with service-related disabilities in jail awaiting trial. Caldwell, a decorated military veteran, has no criminal record.

Nonetheless, on February 12, Judge Amit Mehta ordered Caldwell to remain behind bars: “What Mr. Caldwell is accused of is conspiring with others to plot an insurrection against the government of the United States, particularly the Congress of the United States, while it was attempting to certify the Electoral College vote,” Mehta said during Caldwell’s detention hearing. 

“So the concern with Mr. Caldwell is less what he specifically did on January 6th, like others,” Mehta continued. “It doesn’t look like he actually entered the Capitol building, didn’t assault any police officers. But what he did prior to January the 6th is clearly engage in planning and preparation for conduct that others were engaged in and that others participated in, in the incursion that took place at the Capitol and the violence that followed.” 

Caldwell interrupted the hearing to plead for mercy. “I beg your indulgence, sir. But my life hangs in the balance.”

Caldwell spent 50 days in jail before Mehta reversed himself on March 12 and released Caldwell to very limited home detention.

It now appears Mehta is having additional second thoughts about the Justice Department’s handling of the Capitol breach probe. In dozens of pre-trial detention motions filed by Joe Biden’s Justice Department, the evidence against January 6 defendants rests solely in the hands of the government. Detention hearings act instead almost as ex-parte criminal trials where federal judges in Washington, D.C. declare guilt or innocence based largely on what federal prosecutors present in court, occasionally sending defendants to jail for months before a trial can begin.

Caldwell was one of more than 100 Americans ensnared in what the top prosecutor managing the first stage of the January 6 investigation called a “shock and awe” campaign to intimidate Americans out of coming to the nation’s capital to protest Joe Biden’s inauguration. But that short-term political goal doesn’t seem to be working as a long-term legal strategy for the Justice Department.

Mehta, who has denied bond to three other Oath Keepers now incarcerated in the D.C. jail for months awaiting trials that won’t begin until 2022, expressed his displeasure with the government this week during a status hearing for Caldwell and 16 other defendants in the Oath Keepers conspiracy case.

Mehta said it was “troubling” to learn that the full trove of discovery material won’t be accessible to defendants until early 2022. That means defendants like Caldwell will have to wait at least a year before all the evidence related to their case will be available to defense attorneys.

Mehta had not heard about the lengthy delay—but as we reported, a prosecutor confirmed that timeline in a separate hearing last month. The government’s full discovery obligations, assistant U.S. attorney Kathryn Fifield told Judge Trevor McFadden in a hearing July 30, would not be met until early 2022 and that was a “conservative” estimate, she said. McFadden replied, “this does not feel what the Constitution [and] the Speedy Trial Act envisions.”

Feds Control All Digital Evidence

The government possesses more than 14,000 hours of surveillance footage from the U.S. Capitol Police’s closed-circuit  system, thousands of hours of body camera recordings from law enforcement, and mounds of digital information from personal devices and social media posts. More than 6,000 subpoenas have been issued “seeking documents such as financial records, telephone records, electronic communications service provider records, and travel records,” according to a recent discovery filing.

Almost everything is kept under protective orders with very specific rules on how evidence may be shared with defendants—except for when the Justice Department wants to release cherry-picked videos to bolster the public case that January 6 was a violent “insurrection” or produce the clips that were used to help the Democrats impeach Donald Trump a second time in February.

Even news organizations are petitioning the court to see more footage. A federal judge, at the urging of the Justice Department, recently denied the Press Coalition’s request for all of Officer Michael Fanone’s body-worn camera recordings from that day. (It’s unclear if that video will be part of discovery material in the cases of the four men charged with attacking Fanone on January 6.)

As the FBI continued arresting people on a weekly basis, the Justice Department waited until late May to contract with Deloitte to build a database that could house all of the government’s digital evidence. But building the Deloitte platform is only one part of the challenge; the federal public defender’s office reportedly will have to create a separate database to download, view, and share evidence. (Many Capitol defendants have public defenders or court-appointed attorneys since they cannot afford private counsel.) This would push the launch date far into next year.

Running Out of Patience

Mehta told prosecutors overseeing the Oath Keepers conspiracy case that he wanted an update on the database by August 18 since the first trial date is scheduled for January 2022. The judge also reminded prosecutors about their obligations under the Brady rule, which requires the disclosure of evidence favorable to the defendant. 

(In an interesting disclosure, the prosecutor said the government does not have closed-circuit security footage from the doors on the east side of the Capitol building. She said they are looking “informally” at other sources of video that could contain exculpatory evidence. Stay tuned for updates—this might represent the first of many “disappearing” surveillance videos.)

Mehta and McFadden aren’t the only judges pushing back. In a hearing on Wednesday, Judge Emmet Sullivan warned prosecutors he would “seriously consider some sanctions” unless the discovery system isn’t online within the next 30 days.

That deadline seems like a stretch. (It is also unlikely Sullivan, the biased judge in the Michael Flynn case, will follow through with his threat.)

January 6 defendants appear to have almost no shot at a fair trial in Washington, D.C. Up until this point, Biden’s Justice Department has been in full control. Scrutiny by Beltway judges, albeit overly cautious and long overdue, is nonetheless welcome. After seven months—and counting—of pure hell for the Caldwells, Mehta’s pushback offers the tiny glimmer of hope they’ve been looking for.

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