Thread by @Brandi_Buchman

TODAY, Oath Keepers David Moerschel and Joseph Hackett -- both convicted of seditious conspiracy for their roles on Jan. 6 -- will be sentenced. Court convenes at 9AM ET. I will have live coverage for @emptywheel.

Naturally the door is locked to the media room so if the pattern of late is any indicator, it may open at 9am exactly. It's a good time.

If it isn't open on time, you know the drill; I'll pop into the courtroom and emerge with periodic updates.

Both Moerschel and Hackett were convicted of seditious conspiracy; obstructing an official proceeding and conspiracy to obstruct Congress from discharging its duties. Additionally, Hackett was convicted of tampering with docs/proceedings.

Prosecutors want Judge Mehta to sentence David Moerschel to 12 years, and they have requested 10 years for Hackett.

Moerschel left weapons incl. an AR-15 at the QRF hotel in no. Va (QRF = quick reaction force aka arsenal of guns Oath Keepers stashed at a hotel just over the Potomac River and expected to use if OK leader Stewart Rhodes called on them to do so/Trump invoked the Insurrection Act)

Media room is open huzzah!

And away we go. Judge Mehta is on the bench.

I didn't get to give you a breakdown on Hackett yet this a.m., but in the meantime, here was my guide from December on the defendants: dailykos.com/stories/2022/1…

Mehta will begin by hearing from the parties; Troy Edwards is up for the government. David Moerschel in Dec 2020, joins OK FL hangout group chat; from that date on, there's several msgs...

...from Stewart Rhodes, Kelly Meggs making it reasonably foreseeable that OKers would conduct themselves as they did on 1.6

On 12/22, when Meggs sent a text saying "go one you're a criminal... go with 1000s you're a patriot."
OKer Jason Dolan testified that this prepared OKers to take up arms; Graydon Young said they knew they couldn't go against "corrupt govt alone"

OKer Caleb Berry testified that OKers knew "the more their numbers were" the better off they would be on the 1/6 to achieve their goals

Moerschel brings a rifle, glock to DC; travels with OKer Vitner (Sp?); Edwards says again, bringing these make it reasonably foreseeable to Moerschel that the purpose of bringing the guns was to help Trump stay in office.

Mehta asks about a caravan from FL where some OKers met...
Edwards says it was Moerschel, Vitner who travelled together; they didn't stay at a training ground arranged for OKers; and Moerschel did not stay at the QRF but dropped guns and stayed at another location

On 1/6, Moerschel is with Kelly Meggs the entire day; meaning, again, it was foreseeable that they were going to cause harm to others, cause property damage; Berry testified that Moerschel went inside Capital moments after someone says to "they're going in to stop the vote count"

Edwards moves to obstruction of justice.
Edwards: I read case law court cited yesterday in Henry and Reeves (sp) and how this specific intent element works: I understand your honor's read and it makes sense that the DC circuit has said overall a specific intent is nec...

Edwards cont: ...for court to find defendant did this conduct to district. The court in Henry made it clear there are diff ways to get that specific intent.. and govt doesn't have to show a subjective intent.. there's conduct so obviously destructive it can amount to intent

Edwards: The court in Henry said DC circuit didn't want to raise threshold higher than it needed to to prove this specific intent. Where defendant offers evidence he acted without subjective motivation, court must review and can apply enhancement...

Edwards and Mehta now getting into the weeds, discussing evidence around specific intent around messages removed/deleted by Moerschel. (OKer Roberto Minuta, sentenced yesterday) removed an entire app, Moerschel removed msgs individually...

Moerschel's deletion was "surgical" not widespread; it was specific months of the charged conspiracy.
Edwards says sure, Moerschel may not have known the dates of the charged conspiracy, but he understood why he was deleting specific messages w/co-conspirators after the election

Edwards: I would suggest, there has to be evidence not just some proffer of why they anticipate Moerschel deleted the msgs...
Now last enhancement, they did not seek aggravating role enhancement for Moerschel.

Edwards: We do recognize there's a hierarchy in this conspiracy... we don't think in any way that Moerschel is not responsible for his conduct, but we endeavored to structure this so Rhodes and those at top rec'd certain enhancements, and Moerschel was at the bottom...

In previous sedition cases, even lower ranking members of a conspiracy rec'd significant sentences.
They want an upward departure on count 4; unlike Harrelson, who lacked msgs, Moerschel doesn't suffer from this problem. There were a # that showed his intent...

On way to 1/6, he said if all legislative options fail on 1/6, Trump would Insurrection Act on same day. He starts providing inkling that he understands of what could happen.. and he mentions later that he and patriots may "have to go kinetic", show force to change outcome

Moerschel told conspirators that lawyeyrs always think answer is legal and warriors think answer is a gun battle. This was in context of ppl around Trump trying to sway him away from doing something to stop cert...

Moerschel's next lawyer, Scott Weinberg, is up.
He starts by addressing the gaps in msgs. Moerschel had no msgs from 8/24/19-9/28/19 and then had gaps from 5/22/19-10/10/19 and then another gap from 8/11/20-9/23/20 and the gap govt is focused on 11/14/20-1/14/21

Weinberg, if I'm following here, argues that because there was a history of gaps in msgs, it wasn't obstruction when Moerschel deleted the ones in question during time of conspiracy

Weinberg: When it comes to the Signal app, he deleted it not to hide evidence but because he was done with the group

Weinberg: I'm not trying to relitigate the case, your honor, but based on David's messages, his understanding before he got to 1/6 was that "I'll do Congressman duty and whatever else is needed."

Weinberg: And his first msg to group was "I missed the discussion of Turmp's call to protest on 1/6, always late to the party"

Weinberg: So I don't think it was reasonably foreseeable at that time that people he never met or didn't know ow would do things they did in the capitol up until they were basically at the door.

Weinberg: Moerschel did not caravan up with crew in main group of Oath Keepers; didn't stay at same hotel, didn't drive up with them and first time he met was on 1/6 and day before; didn't have meals, many convos; had minimal contact with group until 1/6

Weinberg says "in Moerschel's mind, he would not have gotten the firearms from the QRF he wouldn't have done it anyway - had not the president told him to do so. Not Stewart Rhodes."

(Somehow, I doubt that!)

It's interesting, we still hear OK defense attorneys make args on behalf of their clients that are kind of all over the place with QRF: it was for defense of Trump supporters if needed or it was for insurrection act; blame laid before Rhodes or Trump shifts here and there too

Anyway, albeit govt hasn't sought an aggravating role, a downward adjustment for a mitigating role is requested by the defense because the govt has recognized that Moerschel was a minimal participant

Def atty (didn't catch his name, apologies) says Moerschel did go inside the capitol, did bring weapons, had discretion to do or not do those things but on aggravating role, this is a factor-based determination and the statute doesn't say one factor is weightier than the next

Mehta asks prosecution to address other gaps in time in Moerschel's phone; Mehta asks if Moerschel's deleting was routine and if it was way to save space on his phone. Weinberg says defense pointed out that Moerschel had an older phone without significant storage space

Edwards: Understood, but I dont think court should infer some reason as opposed to seeing the evidence for these reasons.. defendant should proffer, 'i did this because of that'

Edwards: I understand court's inference that he may be saving space... but my understanding of dates he gave there are not consistent time ranges, It wasn't 3 months every single time; my pt for saying that is, if yyu're doing that and habitually doing it...

Edwards cont: the logical parsing would be picking blocks of time or deleting back half of msgs (last 6 mos and then keep texting) This random pocket, I would argue, (cites case law)
"so long as conduct to a rational person appears obstructive" I think this fits....

Edwards: ..even if there are pockets of deletion with random date ranges around...Also, around his deletion, on 1/6, Moerschel is marching to the Cap with a hat on wearing an American flag patch. When he's coming out of the Capitol, he has the patch from his hat now on his chest

Edwards cont:... and now an OK patch on his hat. Candidly, that caused us issues in trying to ID Moerschel, as much as i hate to admit that, but its evidence that immediately out of the capitol, it indicated he knew what he was doing was criminal

Edwards: That switch of patches? There was no reason to do that, in our mind, other than to look different when exiting the capitol.
Edwards also notes Moerschel msg'd with Kelly Meggs until 1/7 and then msgs stopped altogether.

Edwards: This is not just a scope of 9 defendants, this is a scope of 30, there are plenty others who did not bring a rifle etc...
Then, Weinberg says Moerschel only changed the patch so he could ID other OKers as he was leaving.

Now Judge Mehta has requested a 10 min break to review case law etc.

The defense attorney I could not identify earlier on the fly - that is Connor Robert Martin.

Mr. Moerschel is seated at the defense table wearing a dark suit, white dress shirt and tie; he's very thin, face very angular, i would say, almost gaunt. At the moment he's chatting easily with his attorney, smiling a bit as they speak

And we are back.

Judge Mehta is at the bench.
Moerschel was convicted of 3 conspiracies ... find he was responsible for acts of co-conspirators in particular Meggs, Watkins, Minuta and Vallejo to name a few.

Mehta also finds that Moerschel agreed to participate in conspiracy to oppose by force authority of US govt

The actions of coconsirators inclding acts of force were within scope; reasonably foreseeable. He will go through why:

Moerschel knowingly joined conspiracy and shared i objective, including force; joins OK FL hangout on 12/20/20 and on same day, he says he's a tentative yes for 1/6

By joining OK FL chat, he's rec'ing all msgs including those from Meggs, Rhodes and others; unlike Ken Harrelson who didn't respond to any of these msgs, Moerschel does. That shows he was monitoring and responding to msgs

On 12/2 in chat, someone says invoke insurrection act and moerschel says only trump can do that and if not... this leaves impression that there still may need to be action taken if Trump doesn't invoke Insurrection Act

On 12/24 Moerschel tells OKers he thinks Trump will wait until all legislative options would fail to invoke the Insurrection Act; Moerschel says OKers will have firearms near DC; asks why else Trump would "call us up"

On 12/25/20, Moerschel says he doesn't think Pence will stand on Trump's side; says he thinks Turmp will make his "big move' on 1/6; Jeremy Brown tells him they are on brink of war and Moerschel tells him about his guns and says "i want extra knock down power"

On 1/1/21, Moerschel says "maybe Trump will expose" all the fraud, lack of legal avenues etc and then he goes on to discuss on 1/2 that he heard when defund police movement started, good cops would leave and only bad cops would stay, be cognizant of whose side police are on

Mehta: All of these msgs clearly establish that Moerschel viewed and understood importance of 1/6 as date of transition of power, was prepared to engage in violence w/respect to transition and may have involved...

Mehta cont:...and other actors incl. govt actors who may oppose his view that, in effect, using force was "righteous"

Moerschel brings his glock, that was his "knock down" pistol, Mehta says; he brings weapons to QRF, doesn't stay there, but drops weapons; Mehta notes its fairly clear that march to Capitol, its exclusive purpose was not to do security.

Mehta: Certainly, at some pt, the person they were escorting was gone long before they entered the Capitol
(That would be, I'm almost certain, Roger Stone, who hightailed it out of DC on the 6th)

Mehta also notes that Moerschel's actions cumulatively hindered USCP Officer Harry Dunn and the preponderance of evidence shows Moerschel intended to engage in violence, use force, use QRF to support efforts to prevent transfer of power if called upon to use the QRF weapons

Moerschel has barely raised his head while Mehta has been speaking. he's had his eyes glued to a paper in front of him. He appears to be reading, and had his hands clasped together, sort of resting across his lips for a bit

8 level enhancement does apply for an offense that involves causing or threatening to cause physical injury to person/prop in order to obstruct admin of justice, Mehta says. The QRF factors in here and then the actual conduct and assaultive behavior of OKers inside Cap...

3 level enhancement will apply for obstruction since proceedings were in fact obstructed significantly; the offense involved otherwise extensive scope, planning and preparation to bring this many ppl to DC, bringing firearms, there was planning/prep of going into the bldg

There was an order from Kelly Meggs to go in, according to Caleb Berry and Mehta says he thinks that order also came from Rhodes

Mehta: In terms of organizer/leader: I will decline to reduce for minor participant/minimal role. (US v Graham says in determining whether this reduction applies, defendants conduct has to be measured against relevant conduct for which defendant is responsible...)

He's reading very fast through case law; but concludes the district court need not make express findings of relative culpability if defendants role was assessed though not generically; the facts don't support minimal role with respect to Moerschel. Counsel went thru factors...

Mehta says he'll marry those factors with facts:
He was a participant in OK FL chat where there were active chats about coming to DC, what may happen, preparedness for firearms if nec, he came to dc with 2 ppl, brought 2 weapons, went in with line 1/stack 1...

Though Moerschel didn't go in, he contributed to the strength of those who went inside and increased the danger that day; he didn't provide any direct orders and was not at top of chain in terms of decision making but those facts don't render him as minor role in defense conduct

Mehta: I will apply terrorism enhancement because of the nature of the conviction... I find Moerschel's contribution to the conspiracy was calculated to affect the conduct of govt through intimidation and coercion.

One level increase for terrorism enhancement for Moerschel. Mehta says this is given his relative participation in conspiracy but doesn't reach same level as Kelly Meggs or Jessica Watkins and this is consistent with lower level members of conspiracy

Mehta: As for the instruction: it's an interesting question. Just a couple things: in terms of legal framework, the circuit made clear in Henry that the court needs to find what is a specific intent to obstruct

M: What's important about that in Hnery is that the govt had suggested that wasn't nec in light of an earlier case (Taylor) in which defendant fled courthouse out of fear and court said no,that's still obstruction and guidelines are applicable because...

the fact that he claimed fear, didn't mean the conduct didn't have other purpose of being obstructive. but again, what circuit is saying is there needs to be facts and circumstances unless the conduct is inherently obstructive

Mehta: I'm not sure, but I suppose lying on witness stand is inherently obstructive but something like deleting documents is not, or evidence is not. What is important to point out is that in identifying as an example, destruction or concealing of evidence material to judicial...

proceedings...I don't know if guidelines follow a strict nexus... but if we're talking about doc or evidence destruction it is important to distinguish between what is routine doc destruction vs doc destruction done w/specific intent to obstruct justice

Mehta: There is some parallel here. I'll tell you Mr. Weinberg, you persuaded me that not even by preponderance of evidence can I find that text msg deletion was done with intent to destruct

Mehta: That's because Moerschel had a very old phone with presumably low storage capacity and there were periods of time where he did actually have large gaps (in texts)

There is something to be said about one of the blocks of time where msgs were deleted, Mehta says , but notes it would require him to speculate that texts from that period were with coconspirators but since there was no evidence presented to support this, he can't speculate...

...exactly when deletions occurred and would require Mehta to presume Moerschel had knowledge of an impending investigation.
Evidence of specific intent to obstruct comes up short on 2 acts of deletion, he notes

Mehta says the guideline calcs for David Moerschel are 78 to 97 months, so roughly 6.5 years to 8 years. No final decision yet. First, allocation from the govt.

Edwards starts by summarizing the conspiracy to use force to stop the transfer of power and says:
No matter how many times the govt describes the conduct, it shouldn't decrease the magnitude.

Edwards: The nature of it alone puts it in a rare category in events of American history that should always raise the hairs on the back of our necks when we talk about it.

Edward notes the firearms Moerschel brought to DC. He highlights the epidemic of gun violence in the US; in that context, Moerschel's conduct should be considered as well: Bringing firearms from FL to our district and staging them for criminal purpose

E: He didn't do this for any other purpose than to wait for Trump or Kelly Meggs or Stewart Rhodes to tell him to use them (the guns)
He was ready to use them if someone should tell him its go time.

he safety of our community and balance of our democracy should not hinge on the impulses of madmen. I don't believe Moerschel would have ignored someone like Mr. meggs or Rhodes should they have said, go grab the firearms.

I think that brink is where we should bring ourselves to when we consider Moerschel's conduct.
Edwards says yes, Moerschel should receive credit for proffering to govt before his arrest, providing both firearms and acknowledged they were the firearms he brought to the QRF.
...

But in doing so, do not view Moerschel as a victim. He's not. He's just not. There were a number of victims in 1/6 context who saat around their dinner tables across the country and beleived an election was fraudulent and decided not to engage civically anymore...

because what's the point. Those are victims, who diminished their role in their own govt because of those lies

Moerschel had good upbringing; supportive parents, supportive family at home. He was a neuroscientist, He has a high IQ and opportunities to develop the emotional IQ to know he shouldn't have done what he did.

To call him a victim would be a disservice to those with lesser opportunities who did not do what he did on 1/6. When he came to this district, he brought weapons of war and he wanted his guy and ready to act.

Mr. Moerschel is a seditious conspirator... the msg should be sent that he knows right from wrong and he knows what he did...

Now Moerschel will address the court.
He did not look at Mehta hardly at all. As he takes podium, his voice didn't crack at first. He says his wife can't be because they have 3 small children and they had to arrange child care.

Then, as soon as he opens with his first sentence of his written statement, his voice starts to crack. He sounds like he is crying, but I don't see tears, don't see red flushed face, don't see typical signs I've seen in recent weeks when these guys lose it

Maybe he is remorseful, but I'm just observing how different this display of emotion has been compared to others....

Moerschel: The haunting images of staffers running in fear; Officer Jackson having a near death experience (voice cracking)

Moerschel: When I was on those stairs, I felt like God said to me, get out of here and I didn't and I disobeyed God and I broke laws. I'm not sorry because I'm being punished, I'm sorry because of the harm my actions caused other people...

Moerschel cont: and I think you've seen in my life has been about serving and helping....

Moerschel digs at Kelly Meggs, noting he's a used car salesman.....
He says he's faced with having to move back in with his parents... he's broke now....there's a lot of sniffing

I'm sorry for how Jan 6 contributed to a national crisis, I'm sorry for what its done to my family....
He thanks the court and then takes his seat
Lots of sniffing, crying, face grabbing, but I have yet to see him bust out a tissue.

When Ken Harrelson cried, when Ed Vallejo cried, they were so overcome, they had to wipe snot away from their noses. Didn't see that here with Mr. Moerschel.

Weinberg is now up for allocution: Nobody is the sum of their worst day and this was definitely the worst day of David's life...
(It looks like maybe now, Moerschel is wiping his eyes or nose, he's kind of bent over toward the table)

Weinberg: David is a god fearing individual... even his father in law said something nice about him after he had been arrested and put his family through all of this stuff. David lost a lot. His degrees are no longer worth the paper they were printed on.

Wein: He can never practice neurophysiology again, he's not been able to buy a house, he lost his job, to support his family, he took a job in construction.

Weinberg cont: ...here's a man who goes from working in a brain surgery lab to landscaping in hot sun in Florida. he did that for his family. went from making a decently salary to hourly wage....

Weinberg notes how smart Moerschel is... and says "but for Trumps 12/19 tweet," Moerschel would never have been here in Jan 6; had his boss not approved his time off, he wouldn't be here. In sum: Moerschel, he argues, was taken in by conmen like Rhodes, Trump.

David was naive. That is to minimize it but not excuse him for what he did. I just want the court to remember who he was before 1/6 and who he is today. We would ask for home confinement...

Weinberg adds, or minimal incarceration.

Now Mehta asks for a short break. When we return, he should render a sentence.

FWIW, I can't see inside Moerschels head. Maybe he is genuinely remorseful. I am just telling you what I am seeing and hearing.

Also Moerschel is a neurophysicist not a neuroscientist. Apologies.

And we're back.
Mehta is on the bench...

Mehta: Let me begin with the obvious factors: the need to promote respect for the law and the seriousness of the offense....I don't need to get on a soapbox here about the conduct here and perhaps you better articulated it than I could.....

Mehta: but let me get to the heart of the mater and Mr moerschel's characteristics... it is true in terms of conduct, Mr moerschel's conduct was of great concern. Edwards is right about the significance of bringing that kind of weaponry to this area...

Mehta: The weaponry is scary enough as it is and we don't need to be told about the damage that kind fo weapon could cause but the seriousness is magnified because of the motivation to bring that kind of weapon and that sets it apart from someone...

Mehta: who may do something in a crime of passion or vengeance... something that is politically motivated presents its own degree of danger that other cases do not...

Mehta: All that said, Moerschel was among the lesser culpable ppl with respect to Oath Keepers...he joined late to chats; first chat was 12/19, maybe 12/20, has no leadership role...

He did come with weapons, and that is serious, but Mehta also notes Moerschel was only inside for 12 minutes and didn't shout treason at anyone or assault police.

Mehta: The patch change could be viewed in a different way. one would think if he was really trying to obscure who he was, he wouldn't put on an OKer patch. But it could go either way. He certainly does disassociate with the group the next day...

and goes on to have no further dealings with the group....

Mehta speaks to his character; no priors, history of good works; he's faced punishment in other ways, loss of reputation, vocation, patients...

Dear god he is a "neurophysiologist." Not a neurophysicist or neuroscientist.

We got there. My apologies.

Mehta notes how Harrelson patted down police officers when he left, continued to talk with Meggs after the fact.... Moerschel did not do this... (so sounds like Mehta may go lower than the sentence for Harrelson who got 48 months, 4 years) and he turned over weapons...

Mehta: Look, sentencings are - each person is unique and the reasons for sentences are unique to each individual but I want to say something I haven't said so far. Sentencings shouldn't be vengeful or such that it is unduly harsh for the sake of being harsh.

Different periods of incarceration apply to different people and for various reasons.

NOW: Oath Keeper David Moerschel is sentenced to 36 MONTHS or 3 YEARS.

Moerschel is pretty still in his seat, he occasionally lifts his eyes to Mehta as Mehta reads the terms of his detention. He's got his hands clasped together again, perhaps praying, I'm not sure.

Moerschel will self report.

Mehta addresses him: Mr. Moerschel, your lawyer is right. We are not defined by our worst days and I have every confidence once you have served your time, paid your debt to society, you will resume what has otherwise been a lawful, giving, and faithful life and go on to to do...

wonderful things for your family...

And that's it for Moerschel.

The next sentencing is at 1PM ET.
Judge Mehta will sentence Oath Keeper Joseph Hackett.

And we are back. Before Judge Mehta took the bench, Oath Keeper Joseph Hackett was seated at the defense table next to his attorney, Angie Halim. He is in a dark/gray colored suit, tie, white dress shirt; wearing glasses and was reading and chatting with Halim

Mehta begins. Hackett now rests his glasses on his head, he looks at the judge as Mehta speaks.

Mehta is now going to address filings he has reviewed pertaining to Hackett, including Caldwell's rule 29 motion (motion for acquittal) and others...he's running through them very fast...

Mehta: The standard of review for this motion provide that after govt closes its evidence, the court on defendants motion must enter judgement for acquittal where evidence is insufficient to sustain conviction...

Mehta: The court must presume court properly discharged its duties...a judgment of acquittal is only appropriate if jury can't determine guilt beyond a reasonable doubt

On the deletion of records/comms by Hackett:
Mehta: In context of rule 29, I must be convinced there is insufficient evidence [to acquit]...for reasons I will soon explain, I find there is not sufficient evidence...

Mehta is reading quickly through definitions under applicable statutes... then describes how at recent omnibus hearing, govt showed evidence of his destructive actions (removing comms) taken immediately after 1/6 and on 1/7; showing he anticipated investigation...

Caleb Berry testified that on 1/7 on ride back, Hackett told Berry he had deleted a pic from his phone taken inside the Capitol and then Berry did a factory reset of his own phone. Berry admitted at trial he did this because he was afraid of federal law enforcement

Mehta: Hackett changed his handle, removed himself from critical Jan 6 OK chats;....24 hours after events at Capitol, no arrests were made, no evident investigation by that date...

Mehta notes the removal of the signal app altogether on or about Jan 20 and withdrawing from a textme account - this would confirm with orders given by Stewart Rhodes and his deputies...

M: It is undisputed Hackett wasn't a member of that chat, the old leadership chat, and did not receive these msgs from Rhodes... govt's theory relied on trickle down theory that Rhodes directive reached Hackett and he did as directed...

Govt asserts the deletion of Signal occurred after Jessica Watkins was arrested; so it is a reasonable inference; but jury acquitted on 1512c1 (tampering)... Mehta notes there wasn't direct contact between Rhodes,Hackett so jury woud have to infer there was an intermediary

The fact that Caleb Berry said he knew others were being arrested, did not mean Hackett had that knowledge, Mehta notes.
At last week's hearing, govt relied on US v Martinez to make its argument here...

Mehta: In Martinez case, multiple co-defendants had been arrested in a conspiracy and Martinez would regularly search NYPD databases and report back to co-conspirators that had been arrested...no evidence in Hackett case that he actually knew Watkins was under arrest

Now: Judge Mehta grants Hackett's motion for acquittal on 1512c1 (tampering)(law.cornell.edu/uscode/text/18…)

Mehta notes that there was evidence at trial that Hackett deleted some msgs from phones but he thinks it is a "leap to say" Hackett deleted material on order from Rhodes because "there is no evidence that he ever rec'd those comms or made them" to Hackett

AUSA Alexandra Hughes is now up.
Hackett's relevant conduct encompasses his own acts and those of his coconspirators; he was an early and scrupulous member of this conspiracy. Evidence established he shared and was are of cocon's intents and actions

On 11/12, Hackett wrote, "most poor dumb bastards don't realize what we stand to lose if we lose this election...." he also went on to say he was reading what was developing in the chatrooms

Hughes: He more than anyone was aware of what was unfolding and aware of the mobilization taking place within OK org.
In early fall, he attended Jeremy Brown's unconventional warfare training, that included elaborate steps....

The head of the OKers at the time, Mike Adams, said this was an OKer training and that the trainer suggested the Chinese govt had coopted the US federal govt and that required action by OKers...

Hughes: Adams warned Hackett not to go to DC with long guns; telling him it wasn't wise to go, Hackett had no security experience and told him the situation would end poorly. But Hackett went.

He traveled in caravan with Kelly Meggs with a truckful of weapons. He assisted in unloading them and he himself brought weapons.
On 1/6, he was a member of line 1/stack 1 in the huddle when Meggs said let's stop the vote

Hackett was right behind Meggs going up the stairs into Capitol, Hughes notes
Hackett is watching Hughes as she speaks.

Hackett detailed recruitment efforts to OKers, telling members it was good to recruit at gun stores because people were willing to bear arms and would be "pissed off"

Hughes: Hackett is a well educated man over 50. Caleb Berry is a 19 year old line cook. Hackett tells Berry he's going to DC to fight for his daughter because he feared country would approach pt of no return. This was a pep talk. After Berry followed Hackett, Hackett told him...

Hughes cont: he had deleted photos off his phone.
First off all, why mention this if you're not making a suggestion? That's exactly what Caleb does, deletes these msgs/images off his phone. This warrants a two level enhancement.

Hughes: No photos of 1/6 were found on Hackett's phone despite him telling Berry he took photos.
He changed his name on Signal before removing from group entirely; later deleted entire Signal app and while govt fully respects court's decision with regard to rule 29 but...

Hughes cont:...with regard to enhancement, it is a very clear and objective viewing of this evidence taken together that shows it was intended to obstruct an investigation

Hughes: If you look at chain where Hackett changes his name from "ahab" to "faith" it is Meggs directly saying, "our faces are on tv." These steps taken together were intended to thwart LEO investigation into his actions

One level enhancement for terrorism is also warranted, Hughes says.
On 1/16, Hcakett wrote: we need to demand arrest of politicians who collude with foreign enemies...

Hughes: He blatantly ignored the constitutional process and Jason Dolan said Hackett's msgs convinced him to fight the us govt

Angie Halim is now up. She represents Hackett; she wants the presentencing report to change use of the word "stack" to "line" --

Halim says last week, she thought she heard the court use the term "urban warfare" but she says this term wasn't precisely used at trial; "combat arts training" at a shooting range would be the correct terminology; she thinks the distinction is important because...

...using the phrase "urban warfare" generates a connotation that the training was to do battle in a city setting....

Halim says Hackett's joining of OKers in 2020 is to his benefit...she'll explain later... then she notes he has no military experience, no law enforcement experience, he was described as an inexperienced guy...

Halim argues some of the more aggravating features on 1/6 for Hackett was that he was in same gear, uniforms with other OKers.. but he wasn't celebratory, chanting, not in touch with Watkins, not assaultive or confrontational; exited Capitol on his own...

After 1/6, he has no more contact with ppl he traveled with, Halim says, adding: There were two messages where he "sounds pissed' and talks about a "citizens arrest" - but for those messages, Hackett didn't engage in escalating revolutionary war type talk

For context, here's what Mehta said about "urban warfare" at the omnibus hearing late last month:

https://twitter.com/Brandi_Buchman/status/1661804304850714640?s=20

Halim: For 2 pt upward adjustment for obstruction - just like in Minuta's case yesterday, on 1/7, that was preinvestigation. On 1/7, to extent any photos were deleted, that's pre-investigation. That also goes with name change. It changed handle, but not obfuscation of ID

Though he changed the handle, the phone number remained the same
She goes to move onto terrorism enhancement but Mehta has q about Signal deletion. Halim calls it a "close call" due to timing but no evidence he was aware of the arrest

Halim says of Hackett: I can tell you after 2 years of getting to know this man, he is a head-burier..

Mehta: For conduct that is not inherently obstructive, and I would say deletion is not inherently obstructive, it depends on the circumstances, the burden is on hte defendant to come fwd with at least some evidence that there was nonobstructive purpose for it and then

Mehta cont:.. ct can make a determination based on all the evidence whether act was obstructive by preponderance of evidence. My question: is it sufficient to contend there is an absence of evidence as opposed to coming fwd & saying, here's the other reason Hackett deleted Signal

Halim: I argued at trial that he got rid of Signal in its entirety, didn't get rid of messages. I think piecemeal, that might be inherently suspicious or obstructive....

M: What tipped the scale for me w/Moerschel was that there was evidence, there were other large pds of time where he deleted evidence. It was a proffer, came out at trial that his deletion could have been for purely innocent purposes. I don't quite have anything like that here.

Halim says at end of trial AUSA Jeffrey Nestler admitted photos of a shred bin; Halim said "it looks like person who said 'I have a shred pile and you get around to it whenever you get to it.' They seized a lot of OKers things, meaning he wasn't in hurry to get rid of anything..

Halim cont:... and that was as late as March 28 2021; that's illustrative of state of mind, not trying to get rid of anything to impede an investigation but I think with deletion of a signal app, that was just getting rid of the app like a lot of other apps on his phone

On terrorism upward departure: Halim says she hasn't formally objected so she does so now.
Halim: "I think I have an idea of where the court is going to rule but only thing i wll say about that is it might impact his designation.

"I don't believe he had terrorism in his heart, mind or body language as we saw him on 1/6," Halim says.

Mehta now calls for a short break.

As we await Judg Mehta's return, Hackett is reading and Halim is lotioning her hands. (You know how I feel about staying moisturized - it is essential. Even if you are defending seditionists)

And we're back.

Mehta: Hackett was convicted of seditious conspiracy...and do find he is responsible for related conduct of his co-conspirators convicted of various conspiracies... he agreed to participate in a conspiracy to oppose by force authority of the US

Mehta: The facts show as follows: they show as Hughes pointed out, he is actually someone who would have been witness to either the shift or focus of OKers moving from org that, perhaps, initially to provide community response, to one focused on election and civil unrest...

Mehta:... and being a part of that moment. He does join OKers in summer of 2020, as Hughes pointed out, he attended unconventional warfare training; he participated in combat arts training which Meggs and Harrelson attended, went to Lousivlle event even tho warned not to...

M: After election, he was a moderate participant n communications among the group. He was on the GoTo Mtg call when Rhodes said they should be ready to die and wanted Trump to invoke Insurrection Act, await Trump's order;

Rhodes said: "we're in same spot as founding fathers were in march 1775" and they had to fight etc..Hackett was aware of this...

Mehta: Hacket was on that call and paid some degree of attention because on Nov 11 he sent out a message referring to the Nov 9 organizing call...

Mehta notes how there was an extensive exchange between OKer Jason Dolan and others where Dolan said he's waiting on "illegitimate courts" to solve their problem and aid "survival of their ideas" etc. Hackett responds by saying...

...that's a question most intelligent ppl would ask themselves, Hackett says he would take his family and bolt but his heart was in the US but wants to stay and in effect, fight, to preserve way of life (light paraphrase, Mehta speaking v. fast)

Hackett responded to Jason Dolan's msgs about preparing for civil war etc, saying "i'm with you man" and "I'm glad you put that out there, it helped me a lot to hear what you said"
Mehta: This is significant because Hackett is a willing participant to it and...

Mehta cont:...doesn't get out of it at this pt; Dolan talks about getting killed, tagged w/ treason and Hacket's response is "I'm with you" not "what in god's name are you talking about"
Mehta: He knew what Dolan was contemplating because he himself was contemplating these things

Mehta: That's reinforced by later msgs like on the 16th where he demands the arrest of corrupt politicians... then of course he does come up to DC for the 6th, carrying at least 10 long gun cases with Meggs...

Hackett possibly had an AR-15, but Mehta says evidence on that is unclear but we know he had it when he did the training

M: On night of 1/5, Berry testified that Hackett said he came to DC to fight for his daughter because he believed the country was going to the point of no return

Hackett followed Meggs into small rotunda; marched with OKers to Capitol; once inside, conduct not the same as others but nonetheless he is still responsible for their conduct because it was reasonably foreseeable to him that there would have been physical altercations w/ police.

Mehta: He leaves the next day and quickly essentially removes himself from OKers... There is evidence of consciousness of guilt; he does change name, uses VPN, that may be innocent enough but then there's a very odd email sent on proton mail...

Mehta cont:... of a handwritten note detailing rallying pt; this suggested at a minimum some degree of secrecy and contributes to the overall picture of Hackett being someone who is conscious of what he is doing

Mehta says 8 level enhancement for obstruction is satisfied; 3 level enhancement applies for substantial interference of administration of justice; entirety proceedings were adjourned for more than 5 hours; plus ther was a cost to reinstitute those proceedings...

2 level enhancement for scope/leadership applies; there was coordination on 1/6, going into cap as coordinated group in a line formation all of which supports extensive scope planning and preparation t characterize the offense

Mehta: as far as leader enhancement; the govt's evidence i think falls short. it is true young testified he was subordinate to hackett and said he was in charge of a CPT group, and pointed out influence over Berry...

Mehta cont: some evidence of him advising ppl to use proton mail to avoid detection -- take the full picture of the evidence, i don't think it gets there in terms of actual control.

Mehta: Perhaps Young saw Hackett as superior to him but within the confines of the OK org, there was no evidence that his hierarchy made one wit of difference in effectuating the offense, certainly not on 1/6 or after. being head of cpt group was nonmaterial, it seems to me

The obstruction of justice 2 levels does apply. The signal app was deleted in its entirety 14 days after 1/6. All of Hackett's conduct prior to 1/6 reveal a level of consciousness or understanding about need to obfuscate or keep out of public eye, comms and conduct

Mehta: it seems apparent to me that he opted out on 7th, he very clearly understood the wrongfulness of his conduct. ... it may be he wasn't aware Watkins was arrested and there's no evidence to support that but there certainly was evidence there was a great deal of media attn...

Mehta cont: over Jan 6 at that time....

Hackett did have specific intent and conduct to intimidate officials,. Mehta notes, and applies only a single level enhancement

Hackett has been facing Judge Mehta, sitting and appears to be listening attentively as he speaks.

Hughes is now up for govt allocation:
Hughes: In Oct 17, 2020 msg, to OK FL hangout, to another individual not charged, Hackett wrote, "just filled my med kit so I'm good, we have a firm time on the stop bleed class. likely won't happen before elec...

Hacket text continued: ...do you have any recommended videos for us because of turbulent times area ahead...

Hughes says Hackett knew turbulent times were ahead because he was part of a group that wanted to advance that turbulence. He perceived the election as an existential threat. He perceived "danger in his own back yard" and in fall of 2020 he left his backyard, went to KY, DC

H: When he came to DC, it was tied to his fear of an existential threat... as compared to his coconspirators, Hackett distinguished himself in elaborate efforts to hide his ID.

Hughes cont: Dates of these efforts are important because it demonstrates how early on Hackettt was aware he was involved in a criminal enterprise and involved in an effort that exposed him to criminal liability.

Hughes notes: VPN and Textme account used; changed name in chat after Nov 9 call with Rhodes; discussed deleting with Berry; removed himself from inculpatory threads...

Hackett thought writing in cursive would outsmart surveillance of his msgs....

That he was one of the least culpable of the worst actors on that day should be of no small comfort to this court, Hughes says

Hughes: Others may look at Hackett's case and think if they used the right VPN, deleted the messages how he did... they might be successful ... strong sentencing i s necessary to serve as a deterrent

Now Joseph Hackett is up.
He grips his written statement in his hand.
I regret being there that day. I regret joining the OKers. I'll never forget the frst feeling I had when I entered the bldg, I was horrified.

Hackett continues: It wasn't until trial that I realized just how much damage had been done....
How scared people were just by my presence.. how scared police were, how terrified their families were.

Hackett: I apologize to the police officers on duty that day and aides in fear for their lives. I was so busy worrying about the damage I had done to my family and my own life to appreciate the full measure of my actions that day. I have destroyed my life.

Hackett: My daughter is afraid to sleep in her own bedroom. My wife has rec'd hate mail and threatening phone calls. She's tried to protect me from what she's heard but she would occassionally break and tell me what she was hearing.

H: I did this to my family. I'm the reason we are not enjoying a happy and normal life.

Hackett's voice is soft. He sighs deeply when he says he realized how much pain he's caused police officers working at the Capitol.

Hackett: I will never be the same but I will try to make things better with time...
Your honor, during the trial, I have watched how you have handled ppl with kindness and respect and I'm so sorry that the reason you have for knowing me now is so shameful.

Hackett: I'm thankful you have allowed me to be home with my family during this process...
I am praying for your leniency but I am ready to accept your sentence.

Halim must be reading the tweets out here because she makes a point to mention to Judge Mehta -- who, one would assume can see Hackett just fine in court - that Hackett was visibly shaking.
I can't see that in the media room but he did sound nervous.

Halim notes how Hackett is a chiropractor; helped many patients; he was scared by civil unrest and got involved with OKers for that reason, not because he shared the same beliefs as Stewart Rhodes.

Halim: Hackett made "extraordinarily bad judgments" about people he got involved w/OKers; OKers didn't get extreme until rest of country had devolved into extreme polarities... the rhetoric, words seen in OK chat groups echo rhetoric that ppl in his corner of country were hearing

Halim: We have to acknowledge this. The former president of the United States was saying the election was stolen and there was widespread corruption. High level politicians were endorsing what he was saying and some national media outlets, some not all, were not dispelling it....

Halim continues: context matters, what was going on in his community matters, she notes how Officer Owens said he was a big believer in free will during his victim impact stmt;

Halim notes how Owens said ppl choose to do good or evil.
"I agree completely but here's the thing, choices aren't made in a vacuum. We as humans, complex creatures we are, we make choices with information available to us....

Halim cont: "i'm not sure it was unreasonable for [Hackett] to make some choices in light of what he was hearing. It would be unfair to punish the choices he made without being willing to consider all of that chaotic context and then trudge through layers of human complexity.

Halim: I assure you he will forever regret that he did not exit stage left with Mike Adams in Dec...
He will regret for the rest of his life that he allowed Kelly Meggs to convince him to go to DC

He's scared of his own shadow, he has been for two years. He's aging out of being at risk of reoffending, he's 52 years old....

Halim argues that there is a need for general deterrence, yes but to the extent of what happens to 1 person actually impacting behavior of another human being, in this case, with unique circumstances, the message has been sent and the general deterrent effect has been satisfied

Halim says there's an "absolute awareness" by this pt that "the feds will get you" if you participate in any behavior similar to what happened on 1/6.

(Is there? I think jury may be out on that)

Halim says Hackett has already served 3 mos; Hackett expects some period of incarceration; she wants incarceration, home incarceration and maybe community service.

Halim: He's a good candidate, he lost his professional, livelihood, and his community is suffering. He's got a lot of good to give and it's such a shame and waste that the taxpayers are going to house...

Halim:... and clothe him when you've got a person who is in a position to really give back to his community.

Halim now arguing that the only way to punish people is to put them in jail;
My position is here we can come up w/a low number of mos for incarceration that will satisfy the just punishment prong.... when you consider all that he has already suffered & whatever you do impose..

Halim cont:...and whatever comes next, that will be very strict punishment.

Halim: He will never be a chiropractor again, he lost his license... he has lost his livelihood and I would say, his identity...

Halim: His daughter was 11 y/o when feds raided his home; whoever she was on track to become is gone. She will never be the version of herself...(Halim chokes up....)

Halim continues: Hackett's wife has come here to support him all the way from FL; he's going to be sued civilly, he's going to lose his house; Halim notes he will be ordered to pay restitution

Halim says she often argues that imposing a significant sentence is not going to send a message because people aren't listening.
But she says, the press is reporting; people are listening.

Halim: we can send the msg that this is about your life being gone, financial ruin, civil lawsuits, never serve on jury, never own a gun....

Halim is quoting Ted Lasso.
"I hope either all of us or none of us is judged by our weakest moments but rather the strength you show when given a second chance."

Halim ends her remarks and Mehta says he will take a few moments before rendering a decision.
Now we break.

The guideline range was 97 to 121 months; there was some debate in the media room on whether Mehta said 97 to 120 or 121...but in any event we're about to find out soon where he really falls.

Sentencing guidelines stipulate the range is 97 to 121.

Judge Mehta is back on the bench.

Hackett is watching Mehta, sitting up in his chair straight, looks like hands are resting in his lap with knee crossed.
Mehta says he's 52 years old; history of childhood was documented and won't go into it too much here, but he's been married since '09.

Mehta: He's a chiropractor, ran a busines and from all accounts, not only an aaccomplished chiropractor but he is someone who is patient driven and not in it for the final dollar. There were substance abuse issues in past he's coped with from time to time...

The politicians, the media, your sense of being afraid, your purpose of joining OKers came from a righteous place, you wanted to do something to try and protect your family and ultimately, one can see how somebody who is like you, once you get on one of these chats...

Mehta: that this becomes your source of news, encouragement, community and that its very difficult to turn away from it and its something that can suck you in like a vortex and its a very difficult cult to get out.
Unfortunately...

Mehta notes these lapses of judgement, or desires to be someone else or do things at odds with who they fundamentally are...
I don't doubt [sentence] would be specific deterrents to you...it's not about taking a key and just locking someone up...

M: Others have not come up and said what you said... they've shown less growth...

Mehta says the general deterrence issue is an interesting one, "ms halim, i hear what you're saying" but he adds, i don't think the fact that others are prosecuted should send msg of deterrence to public

Mehta underlines the gravity of the sedition charge and how conspiracy amplifies severity of crime etc..

Mehta: People can be just terrible to each other in their own self-righteousness, it's really very sad.
My sentences have reflected that fact, that ppl have been punished in other ways, whether its professional consequences or reputational...

Mehta says he hopes whoever is watching these sentencing realizes he has considered the entire scope of the conduct of the person he is to sentence; who they led or who was leading them and what risk or danger they pose/posed

Mehta notes he wasn't like Meggs et al but the judge tells him: "You were in it, and you were in it for some period of time and I think Ms. Hughes is correct, you did see the organization, to extent it had a component that was lawful, that changed during the time you were in it.

Mehta: That separates you from others, like Moerschel

He had some control over Berry but Berry went into it with eyes wide open.
Mehta: I don't want anyone in your community to believe you are a bad person, you are clearly a kind caring man, good father, husband, care about others but we can all fall into that hole...

Mehta cont: ...in a way that we can't come out of and regrettably, it's left to me to impose consequences for that...

NOW: Oath Keeper Joseph Hacket is sentenced to 42 months or 3.5 YEARS in prison.

Hackett's facial expression is still and calm and he nods very slightly as Judge Mehta tells him terms of his detention; he must pass drug tests; not allowed to associate with any known or unknown member of terror org or extremist group etc.

This weekend, I will have a report out for @emptywheel about the Oath Keeper sentencings. I hope you'll keep an eye out for that one.

Halim says she's worried about restrictions on consumption of extremist material; she doesn't know how that will be defined; Mehta says he was going to suggest she fashion something more concrete though he says hes unsure if US probation (or other) has defined term

Hackett will self-report to prison.

Mehta: Mr Hackett, I know this is difficult and maybe the words will be hollow. I hope the life you lived until the fall of 2020 is something you can reclaim... maybe not all the pieces, but I hope you will get back to where you were...make your wife, daughter and country proud.

Hackett offers a warm smile to Mehta and nods and thanks him before the judge leaves the bench.

All right, now I'm done for the night, folks.
What a heavy week. I hope you all have a restful weekend.
Again, I'll have a report out for emptywheel this weekend, too.
Thanks for joining me!