Security footage shown to the public for the first time this month by Fox News’ Tucker Carlson does not exonerate Jan. 6 defendants, prosecutors argue in a new court filing.
Republicans gave Carlson access to tens of thousands of hours of footage from Jan. 6, 2021, and he broadcast clips on his show, including footage that showed Jacob Chansley, one of the defendants, being escorted by police officers around the Capitol with no attempt to remove him from the building. The footage was not given to Chansley’s defense, his current and former lawyers have said.
While Chansley pleaded guilty and is serving a prison sentence, other defendants have noted the developments. One, Proud Boys member Dominic Pezzola, asked the court to dismiss his case due to the newly disclosed footage, with lawyers arguing it is “plainly exculpatory” by establishing that the Senate chamber “was never violently breached, and—in fact—was treated respectfully by January 6 protestors.”
That’s not true, U.S. Department of Justice prosecutors said in the new filing.
The prosecutors claimed that the footage aired on Carlson’s show had already been produced to defendants by Sept. 24, 2021.
The closed-circuit television 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,” they said, with the exception of 10 seconds of footage that allegedly “implicated an evacuation route.”
Prosecutors blamed lawyers for not searching through the footage to identify key portions.
“The volume of discovery does not excuse defense counsel from making reasonable efforts to ascertain whether an item has been produced before making representations about what was and was not produced, let alone before filing inaccurate and inflammatory allegations of discovery failures,” they said.
The prosecutors also said that the videos are not exculpatory, for Pezzola or any other defendants.
“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,” they said.
Chansley entered the Capitol along with a “violent crowd” that had access due to Pezzola breaking a window, they said, and Pezzola and Chansley traveled together after entering.
“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,” prosecutors added. “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.”
The footage Carlson aired only captured approximately four minutes of movements and other videos show that he screamed obscenities after entering the Senate chamber, prosecutors said.
“Chansley was not some passive, chaperoned observer of events for the roughly hour that he was unlawfully inside the Capitol,” they said. “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.”
While one officer did accompany Chansley as he made his way to the floor, “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,” they said.
Chansley pleaded guilty to the most serious charge against him and waived any rights to appeal. William Shipley, Chansley’s post-sentence lawyer, has criticized the agreement. Shipley said recently that he’s exploring options in light of the new footage.
Shipley said on a podcast that the footage should have been made available to Chansley according to requirements under Brady, a previous court decision.
“It should have been disclosed, because it doesn’t necessarily have to be guaranteed to have an impact on the outcome of the case,” Shipley said. “But it’s material that’s at least favorable to him that should have been used to inform his decision-making.”
The government did not make a representation to the court that all the video discovery was available when the guilty plea was entered, Shipley said. But, he added, “if the government is going to trot out the kind of evidence they used at sentencing … and they have this other evidence they don’t disclose, then we need to chase down answers to the questions of, where was it? Who had it?”