US v. Caldwell 21 cr 28 ECF 483
C. Oath Keepers Are NOT—by any legitimate measure—extremist
- Counsel very humbly and respectfully proposes that the Honorable Court, in considering
labels such as “extremist,” deal in objective facts and evidence presented by the Government, with
no eye toward popular trends, opinions or perceptions, and thus as a perfect reflection of Lady
Justice. - Counsel believes this is especially important in light of the Government’s use of the
word being a prolongation of its execrable abuse throughout history: Two randomly elected examples
of this general rule are that the British Crown hated “extremist” turncoat Constitutional Founders
in the late 1700s and Hindu and Muslim nationalists despised that revered teacher of nonviolence,
the “extremist” Mahatma Gandhi. Exactly how much weight do American society and the American
judiciary put into the opinions of the past abusers of this ugly word? - History shows this word “extremist” can be (a) a political weapon designed to silence any
beliefs deemed destructive to a favored narrative or agenda; and also (b) a slippery slope. Once
the Honorable Court sanctions the legitimacy and thus intended effect of the word—the restriction
of free speech of a few, even if popular belief holds that a certain group is entirely deserving of
the restriction, and should be silenced—who then is to say that the Honorable Court hasn’t set
precedent for future free speech restrictions imposed upon those who are exuberantly favoring and
celebrating them now? First Amendment rights must protect everyone, not just those with whom we agree.
- While private citizens can say whatsoever things they wish about political or religious
ideas with which they disagree, officers of the Honorable Court have a solemn responsibility to
resist the temptation to apply negative labels to political or religious groups who may be
unpopular at the present time and in the current political climate. - The conceptualization and visualization of Oath Keepers as extremists, and the use of
such charged language, illustrates how the Government’s (primarily Congressional) and news media’s
narratives about January 6, 2021 set the stage for dehumanizing Mr. Harrelson even before this
matter was filed. Broadly speaking, false narratives are an affront to our legal system and debase
us as a civilization. In this case, false narratives have also created an insidious backdrop that
may have contaminated the risk analysis presented to this Honorable Court concerning critical
decisions bearing on pre-trial detention. - The Government cited to Tanios in its Opposition to Hackett’s Motion for Release, ECF
344⁷, to say “Indeed, even in a recent order overturning a detention decision for a January 6
defendant, the D.C. Circuit noted that the defendant had “no ties to any extremist organizations.”
United States v. Tanios, No. 21-3034 (D.C. Cir. Aug. 9, 2021) (per curiam) (unpublished). However,
the full quote of the D.C. Circuit when it ordered the release of Tanios, is:
The record reflects that Tanios has no past felony convictions, no ties to any extremist
organizations, and no post-January 6 criminal behavior that would otherwise show him to pose a
danger to the community within the meaning of the Bail Reform Act. Cf. Munchel, 991 F.3d at 1282-84
(remanding pretrial detention orders where the district court did not demonstrate it adequately
considered whether the defendants present an articulable threat to the community in light of the
absence of record evidence that defendants committed violence or were involved in planning or
coordinating the events of January 6th. United States v. Tanios, 856 Fed. Appx. 325, 326, (D.C. Cir. 2021). We set forth how the discover now shows that Mr. Harrelson also has no past felony convictions, no ties to any extremis organizations, and no post-January 6 criminal behavior that would otherwise show him to pose danger to the community within the meaning of the Bail Reform Act.
- In the original minute order on September 17, 2021, this Court referenced defendant’s
membership in an “extremist organization” as a reason to keep him detained. While eradicating the
scourge of actual extremism is a noble undertaking bearing on national security, there is no
support in any record for the notion that the Oath Keepers is an extremist organization. With as
powerful and negatively connoted word as “extremist,” it is in the Government’s and Honorable
Court’s interest to ensure such determination is not made and the label not applied in ad hoc
fashion.
- The above flyer outlines some of the Oath Keepers goals.⁸ Nothing about the above flyer
is inappropriate, unlawful or unprotected by the Constitution. - Many Americans may find abhorrent the belief Mr. Harrelson is presumed to have held on
January 6—that the vote count may not have been accurate—but assuming arguendo this was his belief,
this does not make him an extremist, nor is an organization broadcasting such belief deserving of
the “extremist” label. Labeling citizens as “extremists” for holding unpopular opinions is to
declare them unwelcome in society and to offend the notion that the American public square is a
large marketplace of ideas wherein a free and open exchange of ideas is allowed. The U.S. is not
in the business of criminalizing, punishing or discouraging thoughts or beliefs. Since the
Indictment makes allusions to the military, even the nation’s highest military court agrees with a
narrowest interpretation of this principle, stating: “We must be sensitive to protection of the
principle of free thought—’not free thought for those who agree with us, but freedom for the
thought we hate.’” (United States v. Priest, 21 C.M.A. 564, 570 (C.M.A. 1972). Even in the armed
forces, wherein many freedoms are surrendered, unpopular speech cannot be punished unless it
interferes with the military’s ability to accomplish its mission (United States v. Wilcox, 66 M.J.
442 (C.A.A.F. 2008). - The National Strategy to Counter Domestic Terrorism (NSCDT)⁹ also sets forth: “It is
critical that we condemn and confront domestic terrorism regardless of the particular ideology that
motivates individuals to violence.” (p.13) Harrelson did not wish to be—and indeed, consequently,
was not—motivated nor influenced to violence on January 6, 2021. Even assuming arguendo that
incitement to violence was a crime (under the law of the land, it is not, as a unanimous Supreme
Court in Brandenburg v. Ohio¹⁰ ruled that even advocacy of the use of force is constitutionally protected, unless specifically “directed to inciting or producing imminent lawless action.”), only must wonder what the material effect was. The Honorable Court might inquire what actual violence it was that Oath Keepers actually engaged in. Can anyone find any? More to the point, Mr. Harrelson NEVER engaged in any violence of any kind, and this is proven by the CCTV footage which the Government has not wanted to release to the public in its entirety.
- The NSCDT also reminds us that “…[t]he definition of “domestic terrorism” in our law
makes no distinction based on political views—left, right, or center—and neither should we.” (p.13)
Counsel submits that it ought to be likewise with the word “extremism”—that extremist behavior,
insofar as it is “generally criminal,” (p.13) be condemned and prosecuted, but only with a Lady
Justice’s perfect blindness as to political leanings, influence and intrigue. The “extremist”
label is not understandable in her pure conscience: indeed it can only begin to become coherent
when the blindfold is removed, such that one can see it is just a matter of one group subscribing
to “political persuasion A” intending, with plainly disingenuous language, to tarnish those
subscribing to “political persuasion B.” This tarnishing is boring and petty child’s play, legally
untenable and morally wrong. It not a crime to believe Congress may not have received accurate
information, and thus to fear that in reliance upon misinformation, it may not certify an election
accurately. - The NSCDT reiterates and further sets forth: “This Strategy focuses specifically on
unlawful violence that poses a threat to public safety, to national security, and to the genuine
free expression of ideas – indeed, to our democracy. Our country and its laws leave wide open the
space for political and ideological views and their articulation, including through peaceful
protest. But they leave no room for unlawful violence. This Strategy is designed to preserve the
former while preventing the latter.” (p.13). Harrelson believed he was engaging in “peaceful
protest” within precisely that “wide open space,” and that likewise and accordingly, an objective
observation of his conduct reveals no actions, let alone mens rea, necessary to sustain the Government’s charges and no reasonable jury will vote to convict him.
- The Oath Keepers attestation from its website is illustrative:
“Oath Keepers is a non-partisan association of current and formerly serving military, police, and
first responders, who pledge to fulfill the oath all military and police take to “defend the
Constitution against all enemies, foreign and domestic.” That oath, mandated by Article VI of the
Constitution itself, is to the Constitution, not to the politicians, and Oath Keepers declare that
they will not obey unconstitutional orders, such as orders to disarm the American people, to
conduct warrantless searches, or to detain Americans as “enemy combatants” in violation of their
ancient right to jury trial. See the Oath Keepers Declaration of Orders We Will Not Obey for
details. Oath Keepers reaches out to both current serving and veterans to remind them of their
oaths, to teach them more about the Constitution they swore to defend, and to inspire them to
defend it. See below for details on how we do that. Oath Keepers also includes a membership program
designated as “Associate Members”, which consists of patriotic citizens who have not served in
uniform but who serve now by supporting this mission with their Associate Membership and volunteer
activities. Oath Keepers welcomes our Associate Members and appreciates their support of our
mission.”
- Observations specific to this mission statement:
A. It is not against the law to wish to preserve liberty and the rule of law, and to favor a
humble Government. None of these things signifies anarchist or extremist thoughts or actions.
Even if a clear definition for extremism were presented that both sides could agree on, and even if
the Oath Keepers failed the test and thus (in accordance with an agreement as to definitions) were
deserving of the label (because certain of its members engaged in conduct that crossed a “red line”
threshold that was clearly delineated within the definition), it still would not implicate Mr.
Harrelson as being likewise deserving of the label, nor responsible for extremist acts perpetrated
by other members of the organization, assuming, arguendo, that they occurred or for anyone else on
an aiding and abetting theory.
B. While actions speak louder than words, and while courts should not rely solely or even
predominantly on what an organization self-attests as to its mission and activities; nevertheless, whatsoever things its membership involves itself in might be better understood by
examining its mission statement; and it is fitting and proper that the “extremist” label derive
from conduct observed and interpreted in as fair and impartial a manner as possible.
C. No one says, “I love tennis, except for all its rules” or “I love my dog, except for the
uniquely doglike characteristics.” Thus insofar as the Constitution built America, we can say that
America is the Constitution—our founding document and supreme law, and to the extent it was
unfinished, imperfect or inexact, it has been and can be further amended. Thus whatever one thinks
about the Constitution is what one thinks about America, and thus, to wish to preserve and protect
the Constitution is not an extremist thought, nor is rallying others to this same cause an
extremist act.
D. Those who wish to abolish the Constitution do not have the right to apply a label of
“extremist” upon those who believe this document remains relevant. In studying Oath Keepers, we
observe that we have an organization that is wholly dedicated to a belief in the primacy of the
Constitution.
E. In the Government’s assertion that the “extremist” label is applied fairly and accurately to
this group whose members are unified by a belief in and admiration for our Nation’s founding
document, the Government is actually asserting and arguing that the Honorable Court, organized
under the Constitution, should be abolished: If reverence for the Constitution is extremist and
bad, then the abolition of all things Constitutional is reasonable and rational and good.
F. If the “extremist” label be applied fairly, it must plainly rest on and derive from
something other than a reverence for liberty and Constitutional doctrine.
- The “extremist” label would be wholly appropriate in describing, for example, those
committing violent acts arising from a belief that all men are NOT created equal and/or that people
should NOT be judged by the “content of their character,” but rather by the color of their skin.¹¹ - For specific contemporary context, defending a political organization against the
“extremist” label would not be warranted in the case of the Boogaloo movement, ¹² because here, we
have an anarchist group promoting civil war (with many of its members hoping to incite a “race
war”) and doing away with the U.S. Government altogether, by stark contrast to Oath Keepers who revere our Constitutionally organized U.S. Government and thus take such keen interest in the meaning of their oaths to it.
- The “extremist” label would also seem appropriate in describing religious persecution,
including the scourge of anti-Semitic¹³ and anti-Muslim¹⁴ violence. The brutal attackers of
Harlem’s pride, celebrated Japanese jazz musician Tadataka Unno,¹⁵ are deserving of the “extremist”
designation—for their anti-Asian hate, the senseless and brutal violence they visited upon the
Japanese immigrant, and the discomposing and glaring moral turpitude which it signifies. - If a clear majority of Americans openly professed unfailing support and reverence for the
Constitution, those suggesting it was an outdated document might be called extremists. But just as
science has been wrong throughout history, so likewise do political climates change with the wind.
For this reason, the NSCDT is eminently wise in stating: “The definition of “domestic terrorism” in our law makes no distinction based on political views – left, right, or center – and neither should we.” (p.13)
- If anyone, for sheer dislike of opposing viewpoints, did not resist the temptation to
demonize them as “extremist,” counsel posits and believes the Government would agree, in a general
context, that such labeling was improper, hollow, and unjustified. In this of all nations of the
world, opinions do not become and ought not to be labeled as “extreme” simply by our opposing them.
The Oath Keepers do not promote nor engage in violent acts. Undersigned counsel could not find a
single instance at an Oath Keepers Security Event wherein they as an organization or Mr. Harrelson
as an individual engaged in violence, killed anyone even in legitimate self-defense, engaged in
human trafficking, got arrested, discharged weapons, beat the innocent, ran drugs, or even failed
to follow traffic laws. - Seeing that the “extremist” label marginalizes and has the effect of stripping an
individual’s integrity and legitimacy in the public eye, those wishing to assert the dominance of
the ruling majority may use the label to further disempower certain political opinions already in
the minority, and the undersigned counsel implores this Honorable Court to make a fresh examination
of the “extremism” tag which has insidiously landed too many Americans into virtual or physical
solitary confinement, notwithstanding that they are unlikely to be convicted or to be sentenced to
time served. - To wit, the FBI keeps a list of extremist organizations:
https://vault.fbi.gov/gangs-extremist-groups?b_start:int=0 (groups 1-20) https://vault.fbi.gov/gangs-extremist-groups?b_start:int=20 (groups 21-30)
- The Oath Keepers are not on this list because their various forms of support for the
founding document of this country are not radical or extremist acts. To the credit of the
prosecutors in front of this Honorable Court, and the FBI agents working these cases, nobody
thought to influence FBI experts who study and track extremist groups that they should, belatedly, add the Oath Keepers to the above list to benefit the characterizations that are, in one word, “untrue.” When two controversial, political organizations badge another organization as “extremist,” and there is a paucity of evidence to support such a finding through the lens of objectivity—when indeed not even the FBI, the world’s foremost expert on extremist organizations, concurs—then Defendant Harrelson cannot be properly held on the basis that at one time he was a member of this group (or indeed, nor on the theoretical basis that he was a current, active member).
- That the Record is Devoid of Evidence that the Oath Keepers had an actual unlawful
purpose in attending the January 6, 2021, “Stop the Steal” Event, unmasks the fact that the charged
object of the conspiracy was in fact First Amendment-protected political speech, association and
demonstration and was completely legal.
- The Government may shrug its collective shoulders and take no responsibility for mass
unpersoning on Facebook, nor endless threatening messages received by family members of a charged
defendant, but if the Government acted with perfection, how is it that State Officials saw
something in how Government’s framing of these charges to justify convicting Americans of treason
before trial? In just one example, on October 19, 2021, Florida’s 12th Commissioner of Agriculture
and Consumer Services proudly announced on Twitter, the nation’s de facto wire service:
- While Commissioner Fried is not on trial, it is just one example of a public record replete with such examples causing one to wonder how anyone could think that the representative interests formulated in this venue could remain unscathed.
Relevant Footnotes
⁶ The Honorable Court is respectfully invited to take judicial notice, in relation to the legal
argument on the question of an “official proceeding,” that the House declared Recess at 2:18 PM.:
Congressional Record House Articles; Congress.gov; Library of Congress. House of Representatives –
January 06, 2021. Counting Electoral Votes—Joint Session of the House and Senate held pursuant to
the Provisions of Senate Concurrent Resolution 1; Congressional Record Vol. 167, No. 4.
https://www.congress.gov/congressional-record/2021/01/06/house-
/H76-4; last accessed: November 10, 2021.
⁷ See ECF 344, p. 10, fn. 8.
⁸ Oath Keepers, Community Response Teams, Pamphlet, 2020.
9 https://www.whitehouse.gov/wp-content/uploads/2021/06/National-Strategy-for-Countering-
Domestic-Terrorism.pdf (June 2021)10 395 U.S. 444 (1969).
¹¹ https://www.justice.gov/usao-wdwa/pr/washington-state-man-sentenced-federal-hate-crime-
attack-sikh-man
¹² https://en.wikipedia.org/wiki/Boogaloo_movement; last accessed: October 31, 2021.
https://www.justice.gov/usao-md/pr/baltimore-member-boogaloo-extremist-movement-pleads-
guilty-illegal- possession-firearm; last accessed: October 31, 2021.
¹³ https://da.lacounty.gov/media/news/pair-charged-hate-crime-attack-outside-sushi-restaurant; last
accessed: October 31, 2021.
¹⁴ https://www.dallasnews.com/news/2012/03/17/widow-daughters-of-man-slain-in-9-11-hate-
crime-in-dallas-become-americans; last accessed: October 31, 2021.
¹⁵ https://www.nytimes.com/2020/10/22/nyregion/jazz-pianist-attack-racism.html; last accessed:
October 31, 2021.