From “On the Media”: Seditious Conspiracy
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Listener supported. WNYC Studios. This is the New Yorker Radio Hour, and we've got something special on the podcast today. It's reporting from WNYC's Micah Loewinger about January 6th and how Micah found himself on the witness stand at the trial of Stuart Rhodes and other members of the Oath Keepers.

If you're an on-the-media listener, you may have already heard this on their program. But if not, we wanted to share it with you because it raises some really critical questions about journalistic independence. During the insurrection, Micah was monitoring a walkie-talkie app called Zello. He recorded real-time chatter among some of the Oath Keepers. We have a good group. We got about 30, 40 of us. We're sticking together and sticking to the plan.

Prosecutors wanted to use that as evidence in going after the group. Now, it's rare for a reporter to be called as a federal witness, especially such a high-profile one. So Michael Loewinger documented it all for On the Media. The story will continue in a moment.

In April 2021, a few months after the insurrection, I was on 60 Minutes. On January 6, Michael Loewinger found an open Stop the Steal conversation going on among 100 people on Zillow and started recording. It wasn't until a couple days later that I started to... A few months later, an assistant United States attorney, one of the prosecutors spearheading the Oath Keepers criminal cases at the time, reached out to me to tell me he had seen me on TV...

And he wanted to talk on the phone about the Zello tape. I thought maybe if I got this guy on the phone, I might be able to glean some useful information about the investigation that would help my own reporting, maybe even a juicy scoop. I wasn't interested in giving him the Zello tape. I don't believe journalists should work with law enforcement in any capacity.

When I responded saying I could make time for a chat, he replied saying that he had forgotten to mention that the lead FBI agent was also interested in speaking with me. I got lightheaded reading this. The FBI? My fear was that they would come up with a reason to take my phone and computer. You know, use the Zello stuff as a pretense to get access to all my interviews and notes related to the insurrection.

I had done my job, I thought. And now it was time for the FBI to do their job without me. I consulted with some colleagues at WNYC and we decided to just put the full unedited Zello recording online. That way anyone, including investigators, could access the material without me having to act as like a middleman.

I uploaded the two plus hours of Zello audio to SoundCloud and a video screen cap of the app, just as I had seen it, to YouTube. I didn't talk with the prosecutor, but I sent him a link to the now public audio. And I thought that would be the end of it. Hey, Brooke, what's going on? Do you have a quick second? Okay, so I think I was just subpoenaed. Okay, sounds good. Bye.

This is a call from August 15th, 2022, over a year and a half after I first heard from the feds. It turns out just having access to the audio wasn't enough for the Justice Department. To play the tape for the jury as evidence in the Oath Keepers criminal trial, the government needed somebody to take the stand and verify its authenticity. As the person who made the recording, I was the only one who could do it.

When the DOJ asked if I would testify voluntarily, my lawyer declined on my behalf, pointing to the importance of journalistic independence, hence the subpoena. The value of your testimony is limited. They're asking you for a little bit about your process of recording it, but you're not giving them any information beyond what any of our listeners heard. My concerns are still like,

All of the coverage around the January 6th stuff has been so heated, particularly when it comes to the defendants, the people in prison. So you stuck yourself into something heated, right? You're a reporter. You uncovered stuff that other people hadn't talked about. I mean, that's good. Brooke felt I should stop worrying and just enjoy the attention I was getting for my work...

But it was the attention that was making me worry. In the words of another reporter on this beat, if you testify in this case, no right-wing sources are going to talk to you ever again. They're going to think you're a fed.

In fact, this exact suspicion started before I even testified. We need a lot more answers about how many FBI agents not just were involved that day, but months beforehand, including the infiltration in these alleged militia groups. This is one of the far right reporters who claims the events of January 6th were set in motion by the government.

She wrote an article suggesting that I had been tipped off by undercover agents so that the feds could entrap well-meaning patriots. Needless to say, that's a dumb conspiracy theory.

I didn't want my participation in the trial to help any other conspiracy theories take hold, but I didn't see a clear alternative. If I didn't comply with the subpoena, I might face the same consequences that, say, Judith Miller did in 2005 after she refused to testify before a grand jury. Judith Miller, a Pulitzer Prize winning reporter for The New York Times, was sent to jail yesterday after she refused to identify a confidential source. My situation was very different.

I had no source to protect. I really had nothing to hide. So going to jail would be a pointless stunt. I spoke with someone intimately involved in the Judith Miller case who told me that trying to fight these kinds of subpoenas in court often wastes a lot of time and resources.

I decided to just testify and get it over with, begrudgingly. What I hear you saying is it doesn't seem like a good look to be a government witness when you're an independent investigative journalist. This is Anna Sale, host of the podcast Death, Sex and Money, which is produced by the same shop as OTM. Anna and I reported a piece together about the Oath Keepers that you'll hear later in this episode.

Federal trials usually don't let cameras or even audio recordings of their proceedings. So I want you to help us like set the scene. I showed up to court. They assigned an FBI agent to me to kind of walk me around so that they can make sure you don't talk to any other witnesses.

Your testimony can in theory be influenced by watching the trial and by speaking to people involved in the trial. So they put me in a witness waiting room for like three or four hours. They gave me like a fidget toy, like a finger trap with a marble in it. And so I just like nervously played with that for like three hours.

By the time I showed up to testify at the federal courthouse in October 2020, I had met with the lead prosecutor, Assistant U.S. Attorney Jeff Nessler, and an FBI agent who sat to the side quietly scribbling on a notepad as I recounted my experience of January 6th.

They asked me about some records they'd gotten from Zello, the company. It was the back end of my years using the app. They had a list of users I had messaged on the app, a list of the exact moments to the minute I had Zello open on my phone in the days leading up to January 6th. Maybe I should know better, but I was shocked to see just how easy it was for the government to access some of the personal data related to my reporting. What'd you wear?

I wore like a kind of standard suit. Wait, why does that make you laugh? I don't know. I kind of just because I'm not a super serious person. I have a serious side to me, but I felt like I was like this kind of man child who had been dropped into a very serious situation. Where did you focus your eyes when you were answering questions?

I looked mostly at the prosecutor because it's a kind of Q&A format, you know.

Mr. Langer, is it true that you work at On The Media? Yes. At one point, the prosecutor was like, and Mr. Langer, did you win an award for this reporting? And before I could answer yes, the defense was like, objection, like standing up. They asked me about getting banned from this group and rejoining it under a different name. And, you know, the prosecutor said, like, why were you banned? And I said, because

It's my job as an investigative reporter to listen in on conversations that people don't want me to hear. Who was sitting at the criminal defendants table? How many criminal defendants were in the room? The only one that I recognized was Stuart Rhodes, the founder and leader of the Oath Keepers, who was a defendant himself. I recognize him because he wears an eyepatch regularly.

When the prosecutor asked me, like, have you been banned from these channels in the past? And I said, yes. I heard him kind of snicker to himself quite loudly. And when he later took the stand, he didn't say anything about me. He did say that he was under the impression that journalists were trying to infiltrate the Oath Keepers at all times. And so perhaps I confirmed some of his paranoia. And that's why he laughed.

You sounded uncomfortable in a good way, you know, like you were walking a line because you're a journalist.

And you don't want to sound like you're in there for the government. This is Roger Parloff, senior editor for Lawfare. He watched my testimony, Jessica Watkins' testimony, and testimony from an FBI agent who took the stand to play the Zello audio for the jury. We have a good group. We got about 30, 40 of us. What you hear on that tape... We're sticking together and sticking to the plan. ...is unambiguous in terms of

a plan to invade the Capitol. So it was a very powerful piece of evidence. If it was so powerful, then why did Jessica get off easier than Kelly Meggs and Stuart Rhodes? They were charged with seditious conspiracy and she was not. Correct.

Now, she was convicted of two other conspiracies, of course. Conspiracy to prevent federal officers from discharging their duties. That refers to both congressmen and police officers. And the substantive count of obstructing an official proceeding. But as far as the seditious conspiracy, they apparently didn't feel there was proof beyond a reasonable doubt. You know, she did testify, as you said, and...

There were aspects of her biography that were sympathetic. What about it stuck out to you? Well...

You know, she's a transgender woman and her parents had disavowed her. And when she, you know, was in the military and she was beginning to have these thoughts about who she was, another soldier confronted her, you know, called her crude names. She was afraid for her life. She went AWOL. She was discharged. She did turn to the transgender community and

But it wasn't her either. You know, the transgender community to her was very touchy feely. It was usually left of center. And here she is, you know, she wants her own militia. So she really didn't fit in anywhere. And and then COVID hits. She ran a bar.

And so the bar had to close and she was in hard straits. So I think the jury could have felt for her as leading a very, very difficult life. It was my impression that she was less involved in a lot of the higher level planning, you know, as opposed to Megs and Rhodes.

Regardless of what role she played in the planning, she was one of the most violent because she led her group toward the Senate side once she got inside and really led them in a violent push against a group of riot police.

After the jury handed down its verdict, the government prepared a 183-page recommendation for the judge, making its case for 18 years of jail time for Jessica Watkins. The Zillow tape was referenced four times in the section where the DOJ outlines the sentencing point system.

converting testimony and evidence into units of time behind bars. They treat her as a leader the same as Rhodes and Megs, so they each get a four-point enhancement. As far as terrorism, they give her a three-point enhancement, which is slightly less than Megs at four and a good bit less than Rhodes at six. Seeing my reporting factored into this cold, hard math has left me with complex feelings—

I believe there should be consequences for the illegal and anti-democratic violence that took place on January 6th. But I also think our criminal justice system is deeply flawed. It's often racist and cruel and often fails to rehabilitate people.

I'm really proud my work had an impact and that I could help show America what the militia movement really represents. But I didn't get into this line of work to play such an active role in locking people up. I realize now that I was kind of naive. I wanted to believe that the endgame of journalism is truth. But sometimes it's prison. This is the New Yorker Radio Hour, and we're featuring a story from our colleagues at On The Media. We'll continue in a moment.

I'm Maria Konnikova. And I'm Nate Silver. And our new podcast, Risky Business, is a show about making better decisions. We're both journalists who moonlight as poker players, and that's the lens we're going to use to approach this entire show. We're going to be discussing everything from high-stakes poker to personal questions. Like whether I should call a plumber or fix my shower myself. And of course, we'll be talking about the election, too. Listen to Risky Business wherever you get your podcasts.

We'll continue now with Micah Lowinger's story about January 6th and his subpoena to appear in federal court. Issuing subpoenas to journalists raises serious questions about the freedom of the press. So shortly after this subpoena landed in his inbox, Micah began looking into the legal history. And that's how he came to a remarkable journalist named Earl Caldwell.

We're interviewing Earl Caldwell this afternoon. I'll be inspiring Earl to speak on various issues connected with his career. This is a 2001 oral history done by the Maynard Institute for Journalism Education. Thank you very much to the Institute for giving me permission to use it extensively in this piece. Earl and I spoke many, many times over the phone, but he never agreed to speak with me on the record. He's writing a book about his life, and he's stopped doing press.

How long was that? It's two hours plus a few minutes. Once I start to rub my mouth, it's all easy. The story begins when Earl Caldwell, then a reporter in his early 30s, joined the New York Times. There was only one other black reporter on the staff when I got there. And what was approaching was the summer of 67, which was to be like no other summer in the history of the republic.

The worst race riots since those two years ago in the Watts section of Los Angeles rocked New Jersey's largest city, Newark, for five consecutive days and nights. Law and order have broken down in Detroit, Michigan. Pillage, looting, murder, and arson have nothing to do with civil rights.

The paper flew Earl all around the country to cover the riots and the civil rights movement. And in April 1968, the Times sent him down to Memphis, Tennessee to interview Dr. Martin Luther King Jr. Earl checked in at the Lorraine Motel, where Dr. King was also staying. And Dr. King gave me an interview. While we're sitting on the balcony talking, he...

He begins to ask me about my personal life, how I got into the newspaper, what it was like being a reporter for the New York Times. He said, we'll talk again tomorrow because we didn't have a chance to go through everything. And nobody told me there was going to be a big rally that night, which turned out to be a very historical moment for that's where King made his mountaintop speech. We've got some difficult days ahead, but it really doesn't matter with me now.

because I'd been to the mountaintop. Earl only learned about this speech later because he was back at the motel. And it was this fierce storm, like it was lightning and thunder. The shadows were rattling and everything. And I've seen the promised land. I may not get there with you, but I want you to know tonight that we as a people will get to the promised land.

The next morning, Earl heard about the morbid premonitions in King's speech. And the way Earl describes this day sounds like a bad dream. You know, that kind of dread when you're rushing somewhere, but

but you feel like you're treading water. I'm trying to get the kid right away and I can't get to him and the day is getting away from us and I was missing my deadline. I imagine him pacing around his motel room, chain-smoking cigarettes, trying to figure out what to do when he heard a loud noise outside. I heard what I thought was a bomb blast and I run out there in my shorts. What happened? What happened? And then I ran up to the balcony and I saw Dr. King. You could see he was

It's a horrible wound, huge, bigger than your fist and his jaw and neck. Dr. King was standing on the balcony of a second-floor hotel room tonight when, according to a companion, a shot was fired from across the street. In the friend's words, the bullet exploded in his face.

You can see Earl in some of the earliest photos of the assassination, in the scrum hovering over MLK on the balcony. He was the only reporter on the scene, and the first to break the story. So that was indeed the biggest story I ever had.

But it was actually the next big reporting project that's the focus of my story. The New York Times sent me out to California to look into this group that had been rising in California and was coming to some national prominence called the Black Panther Party. Within a matter of months,

Earl had developed deep access within the group. So it wasn't easy, even for a black reporter like Earl, to gain the trust of the Panthers. Lee Levine is a media law expert. He's writing a book about Earl Caldwell. The way he did it was providing what the Panthers considered to be fair coverage. You know, he was not misrepresenting who they were and what they were doing. I got so on the inside that I saw the Panthers...

moving a large cache of weapons from San Francisco to Oakland where Huey Newton, the leader of the Panthers, was on trial for murder of a police officer. 3,000 Black Panthers turned out for the start of the trial. Spokesmen say that if Newton is found guilty and given the death penalty, the sentence will have to be carried out over their dead bodies. I put this story in the paper, and when that story came out,

The FBI came to the New York Times and demanded that I give them additional information about these weapons and how I knew it, where they were, all this stuff. And I said, you know, what I know about this, I put it in the paper. And they're saying, well, look, you're there all the time. We want an inside report. We want you to tell us everything that you're getting, everything you know. Ooh.

I said, "Not only could I not do it, I can't even have this conversation with you." They began to call every day. We now know that, in fact, the FBI had informants among reporters who they could plant stories with. There are multiple examples of what is called COINTELPRO, which is its counterintelligence program directed at a variety of what the FBI deemed to be subversive groups, which included the Panthers.

Forty years later, Earl was shocked to learn that his friend, Ernest Withers, a prominent civil rights photojournalist, had been an informant much of his career. So finally, one day, they called Mrs. Brackett. They said, you tell Earl Caldwell. We're not playing games with him.

And they got a subpoena for me to be the star witness against the Black Panthers before a federal grand jury. He had two strains running through his head. One was, as a journalist, I'm not going to be a snitch for the FBI. And then...

To make matters worse, the government also wanted his reporting materials, including the unpublished stuff. And.

And they were all in a storage room at the Times Bureau. Earl discussed his archive with a lawyer at a fancy San Francisco law firm that the Times had hired to deal with the subpoena. And the guy says to me, look, we have a tremendous problem with law and order out here.

And went on, according to Earl, to talk about the problem with black militant violence. The guy told him to bring in his notes and stuff so that he could go through them and told Earl that I think there's probably stuff that you have that the government is entitled to. And that totally freaked Earl out. Ow!

I'm sitting there thinking like, you're in an awful situation because you're at the top of your career. And all of a sudden they're saying something that could get you killed. It wasn't that somebody would say, go shoot Caldwell. It was that in this environment, somebody would say, if he came out here and told us he's a reporter and got all his access and he's a spy for the FBI now, he shouldn't live.

Earl learned that the feds were going to come to the San Francisco Bureau to serve the subpoena. So we didn't know what to do and had all these documents. So we just said, we'll destroy it. Let's just shred everything. Let's dig these tapes apart, cut them up and everything. We had two of these real high garbage cans. We filled them up. And ultimately, he decided to fight the subpoena in court.

Because of his frustrations with the paper's legal team, Earl hired Anthony Amsterdam, a white lawyer recommended by the NAACP Legal Defense Fund. Amsterdam was confident that Earl could beat the subpoena. Lee Levine. My feeling is...

is that in reality, the reason the subpoena was issued was because Earl, among a few other reporters, was giving a view of the Panthers that was contrary to the government and specifically the FBI's preferred narrative to drive a wedge between Earl and the Panthers.

They didn't need documents. They just needed to call him before a grand jury and have him testify behind closed doors, which is what happens in a grand jury. The Panthers wouldn't know what he said or if he said anything. Correct. Even if all he did in the grand jury room was assert his privilege not to answer substantive questions, I think the Panthers, justifiably, given what the FBI was up to, would have been...

and would have cut off access to him. And actually, this became a big part of Anthony Amsterdam's defense for Earl. They rooted this idea of reporter's privilege in the First Amendment. Everybody understands that the First Amendment prohibits the government from preventing publication in advance. That's called a prior restraint. That's the Pentagon Papers. Everybody also understands that the government can't penalize you

after the fact for publishing information that relates to a matter of public concern, especially if it's true. What Earl was arguing is something different, but I think equally important, which is that even actions that government takes that don't directly prohibit or penalize the dissemination of information can have the effect of

This is essentially what I was concerned about when I got my subpoena.

If people come to suspect that all reporters are just secretly working on behalf of the government, the social contract propping up journalism pretty much just falls apart. Do you want me to go on and talk about what happened next? What happened next was that the court was sympathetic to the argument but still ruled that Earl should go before a grand jury to authenticate his reporting.

The Times thought this was a fair ruling, and Earl was happy to say that what he'd written was true, just not behind closed doors. So Earl decided to appeal, and the Times, I think it's fair to say, was not happy about that.

Earl wanted to talk about appealing the decision. So he went to speak with the top in-house New York Times lawyer, Chief Counsel James Goodale. Goodale's shaking his finger at my face saying, you keep pushing this and what's going to happen is you're going to get some bad law written and reporters will be suffering for a lot of years under this. And I said, I'm not pushing anything. It's the Justice Department that's pushing it. But he tried to put it on me. This conversation turned out to be prescient.

At first, everything seemed to be going well for Earl and his legal team. Lo and behold, the Court of Appeals agreed with Earl and ruled that he didn't even have to appear before the grand jury. And this was a unanimous decision, right? Yes, unanimous decision. And so the government appeals. Yes. The government seeks review in the Supreme Court. And at the same time, there are these other cases wending their way further.

through the courts. Paul Pappas, television reporter in Massachusetts, had also tried to fight a subpoena related to his reporting on the Black Panthers. Then there was Paul Bransberg, a reporter in Kentucky who refused to appear before a grand jury to discuss two sources he had witnessed making marijuana products. And all three of those cases were ultimately taken to the Supreme Court for review.

They were all rolled up into a single case known today as Brandsburg v. Hayes, since the case that comes up first alphabetically in the group often becomes the shorthand name. But United States v. Caldwell was considered the most significant of the three.

Earl thought that the mostly liberal court at that time would deliver them a 5-4 win. Unluckily for Earl and the other reporters, there was a dramatic change in the court's composition. The White House announced this evening that Justice Hugo L. Black, the oldest member of the Supreme Court, has retired from the bench. Associate Justice John Marshall Harlan turned in his resignation today just six days after the resignation of Justice Hugo Black.

allowing President Richard Nixon to appoint two new justices to the bench. The U.S. Supreme Court today took on the kind of conservative weight sought so long by Mr. Nixon. It did so by reaching its full complement of nine members with the swearing in of Justices Lewis Powell Jr. and William Rehnquist.

Justice Rehnquist came to the court from the Justice Department, and while in the Justice Department, one of his jobs as head of the Office of Legal Counsel was to formulate the administration's position with respect to this very issue. So... Everybody just assumed he would recuse himself, and he did. He was sitting right there. Why didn't he recuse himself? I don't know. I suppose he wanted to rule on the case and didn't think he had a conflict.

Just like today with uproars over Justice Thomas ruling on cases that some people think he shouldn't. There's really nothing that can be done about it. On June 29th, 1972, the court voted 5-4 against the reporters with Justice Rehnquist casting one of the deciding votes. Justice White, who wrote for the majority, represented.

wrote that this whole concept of indirect restraints was bogus. And then Justice Powell, newly on the court, wrote an opinion concurring in Justice White's opinion, but adding a few words of his own. His opinion has been characterized over the years as enigmatic,

because it seems to suggest, although not entirely clearly, that there are circumstances in which, on a case-by-case basis, a reporter would be able to successfully refuse to answer questions posed by a grand jury. This enigmatic opinion by Justice Powell would turn out to have a long afterlife, which we'll get to in a minute. After the Supreme Court's decision, Earl never responded.

heard another word from the government. So he was never called to testify. There's an argument that the government accomplished what it wanted to accomplish, which is that it had established a precedent that would make sources in the future reluctant to talk to journalists.

But the Supreme Court said that, yes, the government can force you to be a spy and that if you resist, you go to jail. Here's Earl speaking with CBS in 1973. I honestly don't believe that it's possible to do effective journalism in America now.

Well, let me say this. In the immediate aftermath of the decision, there were, you know, the kinds of editorials you would expect in newspapers all over the country. Yeah, there was like a kind of a freak out. Yeah. Editors at the New York Times are worried about the effects of the Supreme Court's decision. National editor Gene Roberts says his staff reporters...

After the ruling, Earle testified before Congress, advocating for a federal shield law. Only when we can operate in an atmosphere free of the intimidation of government can we assure the public that we are vigorously investigating all phases of corruption and political chicanery.

And lawmakers from both parties were listening. They discussed two kinds of bills, laws that would provide absolute immunity, no revealing of anonymous sources, no testifying before grand juries, period, or a qualified immunity, which would only require outing sources if three criteria are met.

One would be that the information sought from the reporter is relevant to an alleged crime. Second, that there's an overriding national interest involved. And third, and this is really the kicker in it, that it can be obtained, that information, from the reporter and no other source. The issue is that news outlets were split on the question of qualified versus absolute immunity. They just couldn't agree.

And as a result, the federal shield law died on the vine. The one constructive thing that came out of it was that Jim Goodale, the New York Times general counsel who allegedly wagged his finger at Earl, to his great and everlasting credit, decided that he should take Justice Powell's admittedly enigmatic language and pour meaning into it.

And over the next several decades, Jim kind of took the lead and was instrumental in having virtually every federal court of appeals and virtually every state Supreme Court hold that, in fact, there is the kind of qualified First Amendment-based reporter's privilege and that it operates in every kind of legal proceeding with the

In other words, Goodale and his fellow media lawyers successfully pointed to the Caldwell-Bransburg ruling to shield reporters from the judicial system. Despite this, several writers over the years have been forced to choose prison over revealing sources to a grand jury.

Judith Miller was jailed for 85 days. Vanessa Leggett was jailed for refusing to give up her materials to the government. Josh Wolf, the longest jailed journalist for protecting a source in U.S. history. Toward the end of my conversation with Lee Levine, he told me he was pretty sure I could have gotten out of participating in the January 6th case, that I could have fought the subpoena in court and won, which honestly came as a shock, and I think he could tell. Let me say this and it'll make you feel better. Ha ha ha!

Just a few years before this, during the first phase of the civil rights movement in the South, where reporters were witnessing the Klan engaging in violence and doing all other sorts of despicable things, many reporters were more than happy to share what they knew and saw and heard with the FBI. Nobody thought anything about it.

This past October, Attorney General Merrick Garland announced a new written policy at the DOJ that the department would limit the circumstances in which prosecutors can subpoena journalists for their reporting materials. Of course, a policy, unlike a law, can be easily undone by the next administration or the next.

Congress needs to pass a federal shield law, like the Protect Reporters from Excessive State Suppression, a.k.a. the PRESS Act, which Representative Jamie Raskin discussed on the House floor last September. I'm very hopeful that this is the Congress in which we can get it done. It wasn't. The House bill passed, but the Senate bill never left the Judiciary Committee. Representative Raskin told me he intends to reintroduce the PRESS Act this summer.

This is a basic protection for journalism. We should have codified it 50 years ago, and we need to pass it now. Michael Lowentjer reporting for On the Media. You can find his work on January 6th and much, much more by subscribing to On the Media's podcast. That's The New Yorker Radio Hour for today. Thanks for listening. The New Yorker Radio Hour is supported in part by the Cherena Endowment Fund.