Did Tucker's Jan. 6 Videos Create a Major Legal Headache for DOJ Prosecutions?

AP Photo/Manuel Balce Ceneta, File
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Needless to say, Fox News Host Tucker Carlson‘s airing of previously unseen clips of the various activities that occurred in and around the U.S. Capitol Building on January 6, 2021, has led to a myriad of reactions.

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Apoplectic Democrats further decried the end of democracy in America, while many Republicans declared the video as proof that there was no riot at all; just a friendly stroll through the building, with Capitol Hill Police behaving as little more than more-than-helpful tour guides.

Both takes are wrong, which we’ll get to in a bit.

In either case, as reported by the Washington Examiner on Friday, the release of the video could create a yuuge (pun intended) legal headache for the Department of Justice’s handling of cases against hundreds of Jan. 6 defendants, according to legal experts.

In addition, a lawyer representing one of five Proud Boys members on trial for seditious conspiracy referenced Carlson’s airing of the video, saying the video provided to the Fox News host by Speaker Kevin McCarthy proves that federal prosecutors hid “plainly exculpatory” Capitol security footage. (I knew this was coming — and it’s a good thing.)

Harvey Silverglate of Boston, one of the nation’s leading defense attorneys, told the Examiner that the footage appearing to show U.S. Capitol Police escorting “QAnon Shaman” Jacob Chansley could lead to an appeal to vacate his guilty plea, which through a plea agreement was reduced to one count of obstruction of an official proceeding, landing the so-called “shaman” 41 months in prison.

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“Virtually every moment of his time inside the Capitol was caught on tape,” Carlson said on Monday. “The tapes show the Capitol Police never stopped Jacob Chansley. They helped him. They acted as his tour guides.”

Stop the tape.

Let the gratuitous attacks begin, but the entire pretense that the whole thing was peaceful is flawed.

Barricades were broken down, windows were smashed, threats to “hang Mike Pence” were made, and untold numbers of protesters forced their way into the building.

So if I’m the undermanned Capitol Police inside that building, and these people are already inside, what am I supposed to do? Start arresting them, leading to an escalation of what was occurring outside? Or, attempt to diffuse the situation by allowing those already inside to walk around at will, while remaining with them to assure no further damage? I’d pick “b” every day of the week and twice on Sunday.

Silvergate said of Chansley: “I think that he can get his guilty plea vacated,” adding:

He certainly is going to try. I think he will probably succeed. It’s not the defense’s fault [the footage] wasn’t turned over.

Chansley has yet to file an appeal or request a retrial.

Roger Roots, the attorney for New York-based Proud Boy Dominic Pezzola, wrote that the footage from Carlson … is evidence that protesters went into the Senate chamber through the invitation of Capitol Police officers. Roots claimed the prosecutors “withheld” the footage from his client.

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This footage is plainly exculpatory; as it establishes that the Senate chamber was never violently breached, and — in fact — was treated respectfully by January 6 protestors. To the extent that protesters entered the chamber, they did so under the supervision of Capitol Police. The Senators on January 6 could have continued proceedings.

That last line was a stretch, but again, if these people are already inside the building, do the Capitol Police stand their ground in front of the Senate chamber doors, or do they continue attempts to de-escalate? (Pick “b.”)

Here’s more, via the Examiner:

Since Carlson’s Monday night debut of the footage, several riot defendants who have yet to face a final judgment over their criminal cases have requested a delay in their trial in order to review the footage released from McCarthy that he said would be made available to all defendants.

In response to two defendants’ requests on Tuesday, the DOJ filed motions, arguing they should not be able to delay their pending trials based on speculation over the 41,000 hours of Capitol surveillance footage made available to Carlson.

The DOJ responses requesting judges not to delay criminal trials inspired curiosity from Silverglate:

Why is the government adamantly opposing the delay in these trials? So that this, arguably and I think clearly exculpatory evidence, can be examined and factored into the retrial?

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The Bottom Line

Is it reasonable to assume that, given 41,000 hours of Capitol surveillance footage, the Democrat-controlled Jan. 6 Committee carefully selected clips that would bolster their case against the laughably misnomered “insurrection,” and that likewise, Tucker Carlson and his team would carefully choose to only air clips that flew in the face of the Democrat charges based on the clips they used?

The answer is a resounding Yes in both cases.

To believe otherwise, in my not-so-humble opinion, is naive — or disingenuous — as hell. Seldom in life is black or white —including Jan 6, 2021.

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