Micah Loewinger: Hey. Micah Loewinger here. As you'll hear in a minute, this week's episode of On the Media is the culmination of three and a half years of reporting. Reporting that made a difference. Reporting that our listeners have helped support with their donations. Thank you to every single one of you that has contributed to our show. If you're listening now and you know that you haven't chipped in, now is a great time to do it. Go to onthemedia.org to donate or text OTM to 70101. It's really just that easy.

Over the next hour, you'll hear reporting that is the hallmark of public radio, careful and thorough, and asking questions you want answers to. If you're wondering how we spend your money, let me reassure you that this is a bare-bones operation over here. No first-class travel or accommodations, no fancy dinners on expense accounts, no frills of any kind. We're just seconds away from the show, so let me remind you of the details of how you can go from OTM listener to OTM supporter. Go to onthemedia.org and hit Donate or text OTM to 70101. Thank you so much. Okay. On with the show.

[music]

Micah Loewinger: On January 6th, 2021, I recorded the secret communications of the Oath Keepers.

Jessica Watkins: We have a good group. We got about 30, 40 of us who are sticking together and sticking to the plan.

Micah Loewinger: Two years later, that audio was a key piece of evidence that sent a militia leader to prison. From WNYC in New York, this is on the media. I'm Micah Loewinger. On this week's show, I explore what happens when journalists are compelled to testify in court.

Earl: 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.

Micah Loewinger: Plus, I spoke to Tasha Adams, the ex-wife of Stewart Rhodes, who was just sentenced to 18 years in prison this week about her life with the founder of a far-right militia group.

Tasha Adams: I helped start this. I helped start this, it turned into that and people died that day. Would this have happened had I not supported Stewart?

Micah Loewinger: It's all coming up after this.

[music]

Brooke Gladstone: From WNYC in New York, this is On the Media. I'm Brooke Gladstone. Our show this week is the final chapter of an investigation that started back in 2019, an investigation that contributed to the first big January 6th sentences announced this week.

Male Speaker: The founder of the far-right Oath Keepers' militia, Stewart Rhodes, was sentenced to 18 years in prison for seditious conspiracy. That's the stiffest penalty yet in the January 6th investigation.

Female Speaker: Jessica Watkins was sentenced to eight and a half years behind bars.

Brooke Gladstone: That last name, Jessica Watkins, you might recognize from our show. OTM correspondent Micah Loewinger was monitoring a walkie-talkie app called Zello during the insurrection and recorded her real-time chatter with other Oath Keepers.

Jessica Watkins: We have a good group. We got about 30, 40 of us who are sticking together and sticking to the plan.

Brooke Gladstone: Because of his reporting, part of a long collaboration with researcher and journalist Hampton Stall of MilitiaWatch, Micah was sucked into the Oath Keepers federal investigation and criminal trial. It's quite rare for a reporter to be called as a federal witness or to have his journalism scrutinized in a criminal trial, let alone such a high-profile one so we asked Micah to document his experience.

Male Speaker: The story will continue in a moment.

Micah Loewinger: In April 2021, a few months after the insurrection, I was on 60 Minutes.

Female Speaker: On January 6th, Micah Loewinger found an open stop, the steal conversation going on among a hundred people on Zello, and started recording.

Micah Loewinger: 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.

[music]

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, 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."

[music]

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 a middleman. I uploaded the two-plus hours of Zello audio to SoundCloud and a video screencap 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.

[phone ringing]

Brooke Gladstone: Hi, Micah.

Micah Loewinger: Hey, Brooke. What's going on?

Brooke Gladstone: Nothing much.

Micah Loewinger: Do you have a quick second?

Brooke Gladstone: Sure.

Micah Loewinger: Okay. I think I was just subpoenaed.

Brooke Gladstone: Call me back in five.

Micah Loewinger: Okay. Sounds good. Bye.

[music]

Micah Loewinger: 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.

Brooke Gladstone: 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.

Micah Loewinger: 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.

Brooke Gladstone: You stuck yourself into something heated, right?

Micah Loewinger: Yes.

Brooke Gladstone: You're a reporter. You uncovered stuff that other people hadn't talked about. That's good.

Micah Loewinger: 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.

Female Speaker: 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.

Micah Loewinger: 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.

Female Speaker: 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.

Micah Loewinger: 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.

Anna Sale: 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.

Micah Loewinger: This is Anna Sale, host of the podcast Death, Sex & 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.

Anna Sale: Federal trials usually don't let cameras or even audio recordings of their proceedings so I want you to help us set the scene.

Micah Loewinger: I showed up to court. They assigned an FBI agent to me to 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. They put me in a witness waiting room for three or four hours. They gave me a fidget toy, like a finger trap with a marble in it and so I just nervously played with that for 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 US attorney Jeff Nestler 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 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.

Anna Sale: What did you wear?

Micah Loewinger: I wore a standard suit.

Female Speaker: Wait. Why does that make you laugh?

Micah Loewinger: I don't know, just because I'm not a super serious person. I don't have a serious side to me, but I felt like I was like this kind of a man-child dropped into a very serious situation.

Anna Sale: Where did you focus your eyes when you were answering questions?

Micah Loewinger: I looked mostly at the prosecutor because it's a kind of Q&A format. "Mr. Loewinger, is it true that you work On the Media?" Yes. At one point, the prosecutor was like, "Mr. Loewinger, did you win an award for this reporting?" Before I could answer yes, the defense was like, "Objection." Like standing up. They ask me about getting banned from this group and rejoining it under a different name. The prosecutor said like, "Why were you banned?" I said, "Because it's my job as an investigative reporter to listen in on conversations that people don't want me to hear."

Anna Sale: Who was sitting at the criminal defendants' table? How many criminal defendants were in the room?

Micah Loewinger: The only one that I recognized was Stewart Rhodes, the founder and leader of the Oath Keepers who was a defendant himself. I recognized him because he wears an eyepatch. When the prosecutor ask me like, "Have you been banned from these channels in the past?" I said, "Yes." I heard him snicker to himself quite loudly. When he later took the stand, he didn't say anything about me. He did say that he was under the impression that journalist were trying to infiltrate the Oath Keepers at all times, and so perhaps that confirm some of his paranoia and that's why he laughed.

Roger Parloff: You sounded uncomfortable in a good way. You were walking align because you're a journalist and you don't want to sound like you're in there for the government.

Micah Loewinger: This is Roger Parloff, senior editor for Lawfare. He watched my testimony. Jessica Watkins's testimony and testimony from an FBI agent who took the stand to play the Zello audio for the jury.

Jessica Watkins: We have a good group. We got about 30, 40 of us.

Roger Parloff: What you hear on that tape-

Jessica Watkins: We're sticking together and sticking to the plan.

Roger Parloff: -is unambiguous in terms of a plan to invade the capital, so it was a very powerful piece of evidence.

Micah Loewinger: If it was so powerful then, why did Jessica get off easier than Kelly Meggs and Stewart Rhodes? They were charged with seditious conspiracy and she was not.

Roger Parloff: 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. As far as this seditious conspiracy, they apparently didn't feel there was proof beyond a reasonable doubt. She did testify as you said and there were aspects of her biography that were sympathetic.

Micah Loewinger: What about it stuck out to you?

Roger Parloff: She's a transgender woman and her parents had disavowed her. When she was in the military and she was beginning to have these thoughts about who she was, another soldier confronted her, called her crude names. She was afraid for her life, she went AWOL, she was discharged. She did turn to the transgender community, but it wasn't her either. The transgender community to her was very touchy-feely. It was usually left of center and here she is, she wants her own militia. She really didn't fit in anywhere and then COVID hits. She ran a bar, and so the bar had to close and she was in hard straits. I think the jury could have felt for her as leading a very, very difficult life.

Micah Loewinger: It was impression that she was less involved in a lot of the higher level planning, as oppose to Meggs and Rhodes.

Roger Parloff: 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 when she got inside and really led them in a violent push against a group of riot police.

Micah Loewinger: After the jury handed down its verdict, the government prepared a 183 page recommendation for the judge making it's case for 18 years of jail time for Jessica Watkins. The Zello 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.

Roger Parloff: They treat her as a leader the same as Rhodes and Meggs, so they each get a four-point enhancement. As far as terrorism, they give her a three point enhancement which is slightly less than Meggs with four and a good bit less than Rhodes at 6.

Micah Loewinger: 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 naive. I wanted to believe that the end game of journalism is truth, but sometimes it's prison.

Brooke Gladstone: Coming up, when the FBI tried to turn a reporter into a spy, he took them all the way to the Supreme Court. This is On the Media. This is On the Media, I'm Brooke Gladstone. Shortly after the subpoena landed in Micah's email inbox, he began looking for examples of other reporters who'd navigated similar experiences, which is how he stumbled upon the story of one remarkable journalist.

Male Speaker: We're interviewing Earl Caldwell this afternoon. I'll be inspiring Earl to speak on various issues connected with his career.

Micah Loewinger: This 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 stop doing press.

Male Speaker: How long was that?

Earl: It's two hours plus a few minutes. Once I start to run my mouth, it's all easy.

Micah Loewinger: The story begins when Earl Caldwell, then a reporter in his early 30s, joined the New York Times.

Earl: 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 public.

Male Speaker: A worse race riots since those two years ago in the Watts section of Los Angeles, rock New Jersey's largest city Newark for five consecutive days and nights.

Earl: Law and order have broken down in Detroit, Michigan. Pillage, looting, murder, and arson have nothing to do with Civil Rights.

Micah Loewinger: 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.

Earl: Dr. King gave me an interview. While we're standing on that balcony talking, he begins to ask me about my personal life, how I got into the newspaper, how long have I been a reporter at the New York Times.

He's said, "We'll talk again tomorrow because we don't have a chance to go through everything. Nobody told me there was a going to be a big rally that night, which turned out to be a very historical moment and that's where King made his mountain top speech.

Dr. Martin Luther King Jr: We've got some difficult days ahead, but it really doesn't matter with me now because I've been to the mountaintop. [crowd cheers]

Micah Loewinger: Earl only learned about this speech later because he was back at the motel.

Earl: It was this fierce storm like it was lightning and thunder [unintelligible 00:19:46] were rattling and everything.

Dr. Martin Luther King Jr: I've seen the promised land. I may not get there with you, but I want you to know the night that we as people will get to the promised land.

Micah Loewinger: 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. That dread when you're rushing somewhere, but you feel like you're treading water.

Earl: I'm trying to get to King right away and I can't get to him, and the day is getting away from us, and I was missing my deadline.

Micah Loewinger: 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.

Earl: I heard what I thought was a bomb blast man. I run out there, my shorts. What happened? Then I ran up to the balcony and I saw Dr. King could see those horrible wounds, huge, bigger than your fist in his jaw and neck.

Male Speaker: 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."

Micah Loewinger: 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.

Earl: That was indeed the biggest story I ever had.

Micah Loewinger: It was actually the next big reporting project that's the focus of my story.

Earl: 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.

Micah Loewinger: Within a matter of months, Earl had developed deep access within the group.

Lee Levine: It wasn't easy, even for a Black reporter like Earl to gain the trust of the Panthers.

Micah Loewinger: Lee Levine is a media law expert. He's writing a book about Earl Caldwell.

Lee Levine: The way he did it was providing what the Panthers considered to be fair coverage. He was not a misrepresenting who they were and what they were doing.

Earl: I got so on the inside that I saw the Panthers moving a large cash of weapons from San Francisco to Oakland, where Huey Newton, the leader in the Panthers, was on trial for murder of a police officer.

[music]

Male Speaker: 3000 Black Panthers turned out for the start of the trial. Spokesman say that if Newton is found guilty and given the death penalty, the sentence will have to be carried out over their dead bodies.

Earl: I put the 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. I said, "What I know about this, I put it in the paper and everything." "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 it." 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.

Lee Levine: We now know that in fact, the FBI had informants among reporters who they could plan 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.

Micah Loewinger: 40 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.

Earl: 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.

Lee Levine: He had two strains running through his head. One was, as a journalist, I'm not going to be a snitch for the FBI. Then not inconsistent with that, as a Black person, I am not going to let the FBI use me to advance their goals against other Black people.

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

Lee Levine: Earl had a boatload of documents and tapes, a lot of recorded interviews with the Panthers, and they were all in a storage room at the Times Bureau.

Micah Loewinger: Earl discussed his archive with a lawyer at a fancy San Francisco law firm that the Times had hired to deal with the subpoena.

Earl: The guy says to me, "Look, we have a tremendous problem with law and order out here."

Lee Levine: Went on, according to Earl, to talk about the problem with Black militant violence, [laughs] Where 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's entitled to." [laughs] That totally freaked Earl out.

Earl: 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. Then somebody would say, "Go shoot Caldwell." It was in this environment, somebody would say, "If he came out here and told us he is a reporter and got all this access and he's a spy for the FBI now, he shouldn't live."

Micah Loewinger: Earl learned that the feds were going to come to the San Francisco Bureau to serve the subpoena.

Earl: We didn't know what to do and had all these documents. We just said, "We'll destroy it." Let's just shred everything. Let's dig these tapes apart, cut them out, and everything. We had two of these real high garbage cans. We filled them up.

Micah Loewinger: 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.

Lee Levine: My feeling 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.

Micah Loewinger: The Panthers wouldn't know what he said or if he said anything.

Lee Levine: 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 nervous and would have cut off access to him.

Micah Loewinger: Actually this became a big part of Anthony Amsterdam's defense for Earl. They rooted this idea of reporters' privilege in the First Amendment.

Lee Levine: Everybody understands that the First Amendment prohibits the government from preventing publication in advance. That's called the 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 in operation of depriving the public of important information about matters of public concern, and that that has an impact on the free flow of information that is analogous to a law that penalizes a reporter for publishing information after the fact.

Micah Loewinger: 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, this social contract propping up journalism pretty much just falls apart.

Lee Levine: Do you want me to go on and talk about what happened next?

Micah Loewinger: 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.

Lee Levine: Earl decided to appeal and the Times, I think it's fair to say, was not happy about that.

Micah Loewinger: Earl wanted to talk about appealing the decision. He went to speak with the top in-house New York Times lawyer, chief counsel, James Goodell.

Earl: Goodell is shaking his finger in 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." Then I said, "I'm not pushing anything, it's the Justice Department that's pushing it," but he tried to put it on me.

Micah Loewinger: This conversation turned out to be prescient. At first, everything seemed to be going well for Earl and his legal team.

Lee Levine: Lo and behold, the Court of Appeals agreed with Earl and ruled that he didn't even have to appear before the grand jury.

Micah Loewinger: This was a unanimous decision, right?

Lee Levine: Yes. Unanimous decision.

Micah Loewinger: So the government appeals?

Lee Levine: Yes, the government seeks review in the Supreme Court, and at the same time, there are these other cases lending their way through the courts.

Micah Loewinger: Paul Pappas.

Lee Levine: Television reporter in Massachusetts.

Micah Loewinger: Had also tried to fight a subpoena related to his reporting on the Black Panthers. Then there was Paul Branzburg, a reporter in Kentucky who refused to appear before a grand jury to discuss two sources he had witnessed making marijuana products.

Lee Levine: All three of those cases were ultimately taken to the Supreme Court for review.

Micah Loewinger: They were all rolled up into a single case known today as Branzburg v. Hayes, since the case that comes up first alphabetically in the group often becomes the shorthand name. But United States v. Coldwell 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.

Lee Levine: Unluckily, for Earl and the other reporters, there was a dramatic change in the court's composition.

Male Speaker: The White House announced this evening that Justice Hugo L. Black, the oldest member of the Supreme Court, has retired from the bench.

Male Speaker: Associate Justice John Marshall Harlan, turned in his resignation today, just six days after the resignation of Justice Hugo Black.

Micah Loewinger: Allowing President Richard Nixon to appoint two new justices to the bench.

Male Speaker: The US 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 a swearing in of Justices Lewis Pollard Jr. and William Rehnquist.

Lee Levine: 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 Council, was to formulate the administration's position with respect to this very issue.

Earl: Everybody just assumed he would recuse himself, and he did. He was sitting right there.

Micah Loewinger: Why didn't he recuse himself?

Lee Levine: I don't know. [laughs] I suppose he wanted to rule on the case and didn't think he had a conflict. Just like today, with uproarers over Justice Thomas ruling on cases that some people think he shouldn't. There's really nothing that can be done about it.

Micah Loewinger: On June 29, 1972, the court voted 5-4 against the reporters with Justice Rehnquist casting one of the deciding votes.

Earl: Justice White, wrote for the majority, wrote that this whole concept of indirect restraints was bogus. 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.

Micah Loewinger: This enigmatic opinion by Justice Powell would turn out to have a long after life, which we'll get to in a minute.

Lee Levine: After the Supreme Court's decision, Earl never have heard another word from the government. He was never called the 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.

Earl: The Supreme Court said, yes, the government can force you to be a spy and that if you resist, you'll go to jail.

Micah Loewinger: Here's Earl speaking with CBS in 1973.

Earl: I honestly don't believe that it's possible to do effective journalism in America now.

Lee Levine: Well, let me say this, an immediate aftermath of the decision, they were the kinds of editorials you would expect in newspapers all over the country.

Micah Loewinger: Yes, there was a kind of freak out.

Lee Levine: Yes.

Male Speaker: Editors at The New York Times are worried about the effects of the Supreme Court's decision. National editor, Jean Roberts says his staff reporters are already jittering.

Micah Loewinger: After the trial, Earl testified before Congress advocating for a federal shield law.

Earl: 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 [unintelligible 00:33:58].

Micah Loewinger: 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.

Lee Levine: 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.

Micah Loewinger: The issue is that news outlets were split on the question of qualified versus absolute immunity. They just couldn't agree. As a result, the federal shield law died on the vine.

Lee Levine: The one constructive thing that came out of it was that Jim Goodell-

Micah Loewinger: The New York Times General Counsel, who allegedly wagged his finger at Earl-

Lee Levine: -to his great and everlasting credit, decided that he should take Justice Powell's admittedly enigmatic language and pour meaning into it. Over the next several decades, Jim 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 qualified First Amendment-based reporter's privilege, and that it operates in every kind of legal proceeding with the one exception of grand juries.

Micah Loewinger: In other words, Goodell, and his fellow media lawyers successfully pointed to the Caldwell Branzburg 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.

Male Speaker: Judith Miller was jailed for 85 days.

Male Speaker: Vanessa Leggett was jailed for refusing to give up her materials to the government.

Male Speaker: Josh Wolf, longest jail journalist for protecting a source in US history.

Micah Loewinger: Towards 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.

Lee Levine: Let me say this, it will make you feel better. [laughs] Just a few years before this, during the first phase of the Civil Rights Movement in the South, where reporters were witnessing the clan 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.

Micah Loewinger: 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, aka the PRESS Act, which Representative Jamie Raskin discussed on the House floor last September.

Jamie Raskin: I'm very hopeful that this is the Congress in which we can get it done.

Micah Loewinger: 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.

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Brooke Gladstone: Coming up, Micah goes to Montana to investigate the origins of the Oath Keepers. This is On The Media. This is On The Media. I'm Brooke Gladstone.

Micah Loewinger: I'm Micah Loewinger with the final story in the final chapter of a reporting project I started over three years ago. A time when I sat for hours alone just listening.

Male Speaker: What interested you in the 3% movement?

Micah Loewinger: To far-right fever swab chat rooms and recruitment interviews on Zello.

Male Speaker: Do all of you have the backing of your family? Do they know that you're on an interview tonight?

Male Speaker: I'm the man in the house, so if I need to go somewhere or do something, that's going to happen.

Micah Loewinger: I wondered what it was like to share a home with someone who had been radicalized like this, which is why when I ran into Anna Sale, my colleague at WNYC at our company holiday party last winter, I pitched the collaboration for the piece you're about to hear. Anna is the host of Death, Sex & Money, a show about difficult personal conversations.

Anna Sale: It's beautiful.

Micah Loewinger: Beautiful and scary because the roads are very nice. Anna and I drove to a remote town in Montana, near the Canadian border to interview Tasha Adams, the ex-wife of Stewart Rhodes. Tasha had witnessed the long build-up to January 6th and could tell us about the private origins of this public extremism.

Anna Sale: We're going to do this interview together, and in some parts of it, Micah is going to lead, and some parts of it I'm going to lead. Micah, do you want to just start?

Micah Loewinger: Sure. Yes. It's really nice for me to meet you. I don't know, do you remember who I am?

Tasha Adams: Yes, I do. I remember we talked a little bit not long after, J6.

Micah Loewinger: That's right. Can I ask about January 6th?

Tasha Adams: Yes.

Micah Loewinger: What were you doing?

Tasha Adams: January 6th, glued to my laptop.

Male Speaker: The Oath Keepers, a far-right paramilitary group are also here. They're organized, staging their military-style equipment neatly on the ground, and later they put on body armor, talk on radios, and chat with their supporters on a walkie-talkie app called Zello.

Micah Loewinger: When did you start hearing from reporters?

Tasha Adams: I had talked with some journalists even from 2018 on, unofficially. Basically, if there was a piece on Stewart. Yes, I did all the background on it. After J6, I felt a lot more comfortable kind of coming out and talking publicly. Even listening to my original interviews, it's almost like a really different perspective. If you read the LA Times article, it's really clear. I'm telling this man, it's all my fault, and he's just writing down. It's all her fault.

Micah Loewinger: What was all your fault?

Tasha Adams: All of it. Oath Keepers, Stewart.

Anna Sale: Because you hadn't prevented it?

Tasha Adams: The first words out of my mouth were, "I helped start this. I helped start this, it turned into that and people died that day. Would this have happened had I not supported Stewart?" It's still really hard for me to talk about J6 in particular as I feel like I do own a piece of that for sure.

Micah Loewinger: Tasha and Stewart Rhodes have six kids and were together for 27 years. They first met in 1991 when Tasha was 18 years old. She was working at a dance studio in Las Vegas where Stewart was taking classes.

Tasha Adams: He just seemed so worldly. He lived everywhere and he'd been in the military and he was also very, very intelligent. That was obvious right away. He'd read The Rise and Fall of the Roman Empire at 13 and he was always reading something. I liked those things about him.

Micah Loewinger: A few months in she started to see how controlling he could be, how he started to demand all of her free time. Nowadays she believes he's a sociopath, but at the time she only had a rough sense that something was off.

Tasha Adams: I was really on the fence and I was really thinking maybe I need to break this off. Then I get a call. There's been a terrible accident. He's accidentally shot himself in the eye. This completely changed everything in my relationship. I was taking care of him. I was cleaning his empty eye socket. I was just like being pulled out in a tidal wave. All of a sudden I'm just in it.

Micah Loewinger: Also, kind of ironic because a lot of the militia guys preach this gun safety thing and how they're well-trained and they don't slip up and then--

Tasha Adams: Yes, during our divorce hearing, it came up where he talked about how safe he was at handling weapons. Honestly, I had been so conditioned for so many years to never bring it up. I just let him sit there with an eye patch on and tell the judge how safe he is with firearms, [laughs] I just didn't say a thing.

Anna Sale: Conditioned because if you ever brought it up during the course of your marriage, it's so humiliating and embarrassing to him that it would be dangerous for you to bring that up.

Tasha Adams: Yes. He would shut it down and so you just couldn't even hint at it.

Anna Sale: When you married had that period of doubting changed into something else?

Tasha Adams: Yes. It changed into I have to fix this.

Anna Sale: Fix what?

Tasha Adams: Fix him. During his recovery, he became more open about the kind of abuse he experienced as a kid. That his mom had not been mentally stable. I felt so bad and I felt so guilty for my own upbringing. I'd had this board game family life with loving people. Whenever there was something I didn't like about his behavior, he would remind me of this horrible childhood he'd had and how difficult he'd had it, and not everyone has this perfect life. He was very intelligent and he was very good at manipulating me.

Micah Loewinger: In 1997, they had their first kid, Dakota. Stewart convinced Tasha to start stripping to help pay his way through college. She was raising their child, bringing home the money. She told me sometimes she even did his homework. In 2001, he got into Yale Law School. The prestigious degree helped Stewart Land jobs, but he had trouble keeping them. At the time he moved the family without explanation after his clerkship abruptly ended.

Tasha Adams: There was a huge argument. He was yelling at the judge. I had no idea he was fired. Just said, "Oh, we're moving. Okay, here we go again."

Micah Loewinger: It sounds like he had a really hard time working for people and with people.

Tasha Adams: Yes.

Micah Loewinger: Was the Oath Keepers a way for him to be the leader, to have the autonomy that he wasn't finding in his life up until that point?

Tasha Adams: Honestly, in some ways that's what I was hoping for when he said he wanted to start an org, I guess I thought, "Wow. Then he could just talk for a living and then he can't get fired and maybe we can pay the rent." He talked about it for a while and we were at a Ron Paul event, that's when he was doing some legal work for the Ron Paul campaign, 2008. By then, I have a million kids, so I'm just entertaining kids. That's all I'm doing, these things. He comes back in with a notebook with some names written down, and one of the names on it was Oath Keepers. I said, well, just stop right there. That's the name. That is the name. That name is so marketable. It's just a good name. I could see it on jackets, sell T-shirts, people are going to love it.

Micah Loewinger: Can I ask you just a really basic question? What was the oath?

Tasha Adams: Oath Keepers, the oath is based on the idea that everybody in the military, even post office workers, even lawyers, police officers have all had to swear an oath by law, have to swear an oath to the Constitution before they can go into office. The idea is that sometimes these guys swear an oath to protect and defend the Constitution and they're not doing it. His original pitch, which is how he pitched it to me, [laughs] was very much this idea of what if police in particular had a support group who they could go to if they saw corruption and that they could say, "Hey, things are going crazy in my department. They're not acting right and I don't know what to do," and they would offer legal counsel.

Micah Loewinger: At the time, Tasha didn't see anything dangerous about this type of militia organizing, though others saw it for what it was like when Stewart was interviewed by Chris Matthews on MSNBC in 2009.

Tasha Adams: Chris Matthews said, "I think you won a war."

Chris Matthews: You Know what I think you're up to, is creating a mindset. You want to have people in a militant environment where they think militantly with this sense of perhaps taking steps at some point against the government or not taking orders or in some way rebelling--

Tasha Adams: I don't think Stewarts ever been called out so accurately.

Micah Loewinger: So early too.

Tasha Adams: Yes, so early. Part of me was like, am I mad because there's some truth to this? I was afraid there might be truth to it. I really, really didn't want there to be truth to it.

Micah Loewinger: Meanwhile, life at home was becoming more and more difficult. She recently tweeted out a picture of scars on her arm. We sent a list of questions to Stewart and his lawyers for this piece, he declined to comment

Tasha Adams: If you were to ask me, and in fact, I was asked three years ago, was Stewart physically abusive? I would've said no and did say no many times. He would never outright punch you, but he would do other things to hurt you. Most commonly he would want to do martial arts with you, and then you would just get beat up [beep] really with sticks or whatever and just, "Oh, sorry about that. Oh, sorry about that", but how often and how hard you got hurt correlated directly to how upset he was with you over something. I was physically afraid of him. I was afraid he was going to kill us all.

Micah Loewinger: She and the kids had started talking about trying to escape, but they were so isolated. He had moved them to a remote part of Montana. She told me she didn't have reliable access to a car or even cell service. It was around this time she began following the custody battle of Infowars host and far-right conspiracy peddler, Alex Jones.

Alex Jones: His ex-wife, Kelly, is seeking sole or joint custody of the children who are aged 9, 12, and 14, who currently live full-time with their father. Her claim, he's "not a stable person", and part of her evidence is his media persona.

Tasha Adams: I was watching that very closely and that played a huge part in like, "Whoa, I really could lose my kids." I knew she was someone that would understand that. I had texted her very briefly and I said, "I'm a few months away from doing the same."

Micah Loewinger: Tasha and her kids left Stewart in 2018, for five-and-a-half years the divorce was tied up in family court until this past Tuesday.

Male Speaker: Live, doing it live.

Tasha Adams: Live from Libby, Montana.

Micah Loewinger: Tasha and her son Dakota posted this video on Twitter.

Tasha Adams: I'm divorced and my case has been unsealed.

Male Speaker: The records unsealed -

Tasha Adams: Records are unsealed.

Male Speaker: - then after that is no contact.

Tasha Adams: No contact with the kids.

Micah Loewinger: Then on Thursday, just a couple days later.

Female Speaker: We have breaking news for you, Oath Keepers founder Stewart Rhodes has been sentenced to 18 years in prison.

Male Speaker: Yes. This is the longest sentence in any US capitol riot, prosecution. 18 years will keep Stewart Rhodes in prison up to the 2040s.

Micah Loewinger: Wow. Big day for you. Big week for you.

Tasha Adams: Yes. This is great.

Micah Loewinger: How did it feel to see that number 18 years?

Tasha Adams: As the judge started talking, I thought, well, this could even be more.

Micah Loewinger: Judge Amit Mehta called Stewart Rhodes, "Peril to our democracy." After Stewart Rhodes had gone on a conspiratorial rant in the courtroom.

Tasha Adams: He basically called for violence right there on stand while he is in the middle of sentencing. In his mind, his strategy is, I hope they hear me. I'm speaking loud enough and outrageous enough that the conservative news circles like Fox pick it up.

Micah Loewinger: You think he put on a show so that he'll be quoted as a martyr in some of the conservative press?

Tasha Adams: Yes. Then that will be enough that maybe an incoming, whoever might be the next presidential candidate will hear that and get, "Oh, I'm hearing this name Stewart Rhodes a lot, he must be important. We'll throw that out there."

Micah Loewinger: When I called you up knowing how much this sentence meant to you. I was expecting you to be celebrating at the 18 years. What I'm hearing is more, because of the potential for a pardon, you're seeing this as more of a, 2024 is only a year away.

Tasha Adams: Yes, it looms. It for sure will loom, but I'm super happy, for the next few years. I'd like to get out. I'd like to see the world a little bit or at least more in the country. Maybe at least a city with more than 2000 people. [laughs] Go to a place where there's more than one McDonald's or more than one Costco or [laughs] something crazy like that.

Micah Loewinger: Tasha told me she thinks this sentence will have a chilling effect on the militia movement, that Stewart Rhodes had more of an influence on this form of extremism than people realize. That may be so, but I think we're far from out of the woods, the deep revisionist history related to January 6th, the election denialism, and the man with gun vigilantism will persist because the paranoia and reactionary rage that he tapped into, is running for president in 2024.

For On the Media, I'm Micah Loewinger. Subscribe to Anna Sales Podcast, Death, Sex & Money, to listen to a version of this interview that delves even deeper into Tasha Adams's backstory. It's produced by Zoe Azalea, and it's a really great listen.

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Brooke Gladstone: On the Media is produced by Eloise Blondiau, Molly Schwartz, Rebecca Clark-Callender, Candice Wang, and Suzanne Gaber. Our technical director is Jennifer Munson. Our engineer this week was Andrew Nerviano. Katya Rogers is our executive producer, On the Media is a production of WNYC Studios. I'm Brooke Gladstone.

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