Prosecutors respond to Tucker Carlson

I commented on Tucker Carlson’s four segments featuring suppressed January 6 videos last week in posts here (March 9) and here (March 10). Now January 6 defendant Dominic Pezzola has brought a motion seeking dismissal of the case against him “due to recent revelations on the Tucker Carlson show” that purportedly prove that Congress overreacted when members of a mob that had overrun officers, broken windows and doors, and was roaming freely throughout the Capitol building began pounding on the door of the House of Representatives.” Pezzola’s case is pending before United States District Judge Timothy Kelly. Politico’s Kyle Cheney reports on the latest wrinkle in the case at trial here.

Prosecutors have opposed the dismissal motion in a memorandum posted online here in United States v. Nordean et al. The government first asserts that it turned over the video to defense counsel (footnote omitted):

The footage in question comes from the Capitol’s video surveillance system, commonly referred to as “CCTV” (for “closed-circuit television”). The Court will be familiar with the numerous CCTV clips that have been introduced as exhibits during this trial. The CCTV footage is core evidence in nearly every January 6 case, and it was produced en masse, labeled by camera number and by time, to all defense counsel in all cases. With the exception of one CCTV camera (where said footage totaled approximately 10 seconds and implicated an evacuation route), all of the footage played on television was disclosed to defendant Pezzola (and defendant Chansley) by September 24, 2021.4 The final 10 seconds of footage was produced in global discovery to all defense counsel on January 23, 2023. Pezzola’s Brady claim therefore fails at the threshold, because nothing has been suppressed. United States v. Blackley, 986 F. Supp. 600, 603 (D.D.C. 1997) (“For an item to be Brady, it must be something that is being ‘suppress[ed] by the prosecution.’”) (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963)).

The government makes a second point that bears on what I wrote. It denies that the videos are exculpatory (footnote omitted):

[T]he record should be clear that the videos in question are not exculpatory of Pezzola or any other participant in the siege of the Capitol on January 6, 2021. In fact, the videos of Chansley’s movements throughout his time in the Capitol are highly inculpatory of Pezzola, Chansley, and other rioters captured on them.

Pezzola’s argument seems to be that the snippets of Chansley’s movements that were televised by Carlson establish that there was no emergency necessitating the suspension of proceedings. The televised footage lacks the context of what occurred before and after the footage. Chansley entered the building as part of a violent crowd that gained access as a result of Pezzola’s destruction of a window and he traveled with Pezzola during the initial breach. And just as Defendant Biggs had recounted in a recorded statement after January 6, 2021, by the time Pezzola forcibly breached the Capitol and Chansley rode his coattails, the mob—through the sheer force of its size and the violence of those within it—had wrested control of portions of the Capitol grounds and the Capitol itself from a vastly outnumbered U.S. Capitol Police force. As a result, for a period that afternoon, those defending the Capitol were in triage mode—trying to deal with the most violent element of those unlawfully present, holding those portions of the Capitol that had not yet been seized by rioters, and protecting those Members and staffers who were still trapped in the Capitol.

Chansley piggybacking on Pezzola’s violent breach of the Capitol provides more than enough evidence of his corrupt intent to interfere with Congress that day. But there is much more evidence of his and others’ conduct. The televised footage shows Chansley’s movements only from approximately 2:56 p.m. to 3:00 p.m. Prior to that time, Chansley had, amongst other acts, breached a police line at 2:09 p.m. with the mob, entered the Capitol less than one minute behind Pezzola during the initial breach of the building, and faced off with members of the U.S. Capitol Police for more than thirty minutes in front of the Senate Chamber doors while elected officials, including the Vice President of the United States, were fleeing from the chamber. Chansley then entered the Senate Gallery, where he proceeded to scream obscenities while other rioters rifled through the desks of U.S. Senators on the floor below. All these actions were captured by Senate floor and/or CCTV cameras. In sum, Chansley was not some passive, chaperoned observer of events for the roughly hour that he was unlawfully inside the Capitol. He was part of the initial breach of the building; he confronted law enforcement for roughly 30 minutes just outside the Senate Chamber; he gained access to the gallery of the Senate along with other members of the mob (obviously, precluding any Senate business from occurring); and he gained access to and later left the Senate floor only after law enforcement was able to arrive en masse to remove him. It is true that a sole officer, who was trying to de-escalate the situation, was with Chansley as he made his way to the Senate floor after initially breaching the Chamber, as the televised footage reflects.6 But the televised footage fails to show that Chansley subsequently refused to be escorted out by this lone officer and instead left the Capitol only after additional officers arrived and forcibly escorted him out.

Whether the prosecutors produced the videos to Jacob Chansley’s defense counsel is a question of fact that I did not raise in my comments last week. I assume (and assumed) they did not.

I wrote original Chansley counsel Albert Watkins to ask for comment on the linked brief. Mr. Watkins responded in a message that I will quote in the adjacent post. I also wrote current Chansley counsel William Shipley to ask for comment. I will quote his response in another post as well.