“And get this — the first of us who got upstairs kicked in Nancy Pelosi’s office door and pushed down the hall towards her inner sanctum, the mob howling with rage,” he wrote from inside the Capitol, prosecutors claim. “Crazy Nancy probably would have been torn into little pieces, but she was nowhere to be seen.”
Now Calhoun is asking a federal judge in Washington, D.C., to prohibit prosecutors from using his voluminous comments on social media against him in trial. Calhoun’s attorney, Jessica Sherman-Stoltz, wrote in a motion filed this week in federal court that her client’s words would create an unfair picture of him for jurors.
“It is highly likely that the content, writings, arguments and narratives contained in Mr. Calhoun’s social media posts will inflame the jurors and lead them to reach a decision based on their emotions, rather than on the evidence before them,” she wrote.
In a separate filing, Sherman-Stoltz asked the judge to return property taken from the house were he was staying, claiming caches of assault rifles, ammunition and tactical gear seized at the time of his arrest violated his constitutional rights.
Calhoun, a longtime criminal defense attorney in South Georgia, has continued his law practice as he awaits trial on five criminal charges for his alleged participation in the riot. The most serious of the charges — obstructing an official proceeding — is a felony with a possible 20-year prison sentence. And since his arrest nine days after the Capitol attack, prosecutors have pointed to Calhoun’s social media trail as evidence that he is dangerous and deserving of some of the most serious charges leveled against the more than 860 people so far arrested in the wide-ranging investigation.
Alexandra Evans, a policy researcher at the policy think tank RAND Corp., said participants in the Jan. 6 riot used social media to spread radical ideas and conspiracy theories, but they also used it for fundraising and organizing real-world demonstrations.
“We see this encouragement within these communities and mobilization into action,” she said. “So the decision (is) to not just participate in conspiratorial movements online, but then to join these cohorts that you’ve met online and actually to move towards Washington together and participate in protests.”
It’s not unusual for Jan. 6 defendants to be implicated by their social media profiles. The FBI and a legion of internet sleuths have identified hundreds of defendants from their own selfies posted on sites like Facebook and Parler, and some defendants have had their words hurled back at them by judges weighing their punishment. But the FBI was aware of Calhoun’s outrageous and often violent social media trail even before Jan. 6.
In testimony in a Jan. 21, 2021, hearing in Macon after his arrest, an FBI agent said he first learned of Calhoun from a tipster who called in November 2020 concerned about the lawyer’s threatening tone, including posts like “We are going to kill every last Communist who stands in Trump’s way.”
The posts were extremely concerning to Magistrate Judge Charles Weigle, who denied Calhoun’s request for bond.
“We have the defendant’s own statements, made publicly on social media, extensively, which reveal, first of all, that he has been corrupted by or seduced by dangerous and violent ideology that considers the United States to be in a state of civil war, considers everyone who voted for a Democrat to be worthy of execution, considers government officials and agents to be members of a Deep State that has to be opposed by so-called Patriots,” Weigle said.
Credit: U.S. Department of Justice
Credit: U.S. Department of Justice
Calhoun appealed that decision and was released on bond a few weeks later and has since returned to his law practice while awaiting trial. But even before his arrest, he dismissed his social media persona as bluster born from frustration over the 2020 presidential election.
“There’s hot language on social media, and then there’s, you know, the reality on the ground,” he said in an interview with The Atlanta Journal-Constitution two days after the riot where he repeated conspiracy theories about the riot, Democrats and especially Joe Biden.
When asked about a post urging then-candidate Biden to be hanged, Calhoun denied he meant it literally.
“Trump voters say that all the time. It’s figurative. We’re just ornery and it’s figurative language,” he said.
Sherman-Stoltz uses a similar line of reasoning in her motion claiming Calhoun’s posts are often in “narrative” form and “are a form of creative writing and artistic expression and they are entitled to protection under the First Amendment.”
Evans said the internet is a very powerful tool for creating extremist communities, but it’s hard to judge the individuals in those communities by the literal meaning of what they post.
“One of the challenges is that online it’s very difficult to tell the difference between performative speech and sincere speech,” she said.
That is not necessarily the case for many of the people who were among those who breached the Capitol and now find prosecutors using their online posts as evidence, she said.
“What is striking to me about Jan. 6 is how explicit a good number of attendees were on their social platforms about what they were intending to do or about what they viewed as motivations for participation,” she said. “And they are now discovering that everything that they put online can be used against them.”
Federal prosecutors have not yet responded to Calhoun’s latest motions. A motions hearing is set for next month.
A trial date has not been set in the case. Unlike a dozen other Georgian’s arrested in the riot, Calhoun has not accepted a plea agreement. Verden Andrew Nalley, Calhoun’s friend and co-defendant, pleaded to a misdemeanor charge and was sentenced in March to two years probation, a fact not lost on Calhoun who has complained that he has not been offered a misdemeanor deal.