(Washington Examiner) The release of new tapes from the Jan. 6 Capitol riot on Tucker Carlson‘s Fox News show could create a major legal headache for the Department of Justice‘s handling of cases against hundreds of defendants, according to legal experts.
A lawyer representing one of five Proud Boys members on trial for seditious conspiracy referenced Carlson’s showcase on Thursday, saying the tapes offered to the commentator by House Speaker Kevin McCarthy (R-CA) prove federal prosecutors hid “plainly exculpatory” Capitol security footage.
The court filing is the latest of several requests for a mistrial from attorneys representing the five Proud Boys, who have repeatedly accused the government of wrongdoing. All their previous requests have been denied by U.S. District Judge Timothy Kelly, an appointee of former President Donald Trump.
One of the nation’s leading defense attorneys, Harvey Silverglate of Boston, told the Washington Examiner that Carlson’s footage appearing to show U.S. Capitol Police escorting the infamous “QAnon Shaman” Jacob Chansley could be a foreshadowing of an appeal to vacate his guilty plea, which through bargaining was chiseled down to a single count of obstruction of an official proceeding, landing him 41 months in prison.
“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.”
Silverglate, a criminal defense and civil liberties attorney representing onetime Trump attorney John Eastman, said, “I think that he can get his guilty plea vacated,” referring to Chansley, who has yet to file an appeal or request a retrial.
“He certainly is going to try. I think he will probably succeed,” Silverglate said, adding, “It’s not the defense’s fault [the footage] wasn’t turned over.”
On Thursday, Roger Roots, the attorney for New York-based Proud Boy Dominic Pezzola, wrote the footage from Carlson on Chansley 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.
“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,” Roots wrote in the 11-page court filing. “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.”
Roots also alleged it was not Pezzola nor his co-defendants that caused Congress to recess on the day of the riot, arguing, “Congress interrupted its own proceedings.”
The filing does not mention any video pertaining specifically to Pezzola. According to video shown at one of the House select committee hearings on the Jan. 6 riot, Pezzola is shown smashing one of the first Capitol windows that day. He’s pleaded not guilty to all charges.
Roots’s filing also details remarks from Chansley’s counsel at the time of his November 2021 sentencing, Albert Watkins, who said while he was given many hours of video footage by prosecutors, he was not given the footage aired by Carlson on Monday night.
“What’s deeply troubling,” Watkins said Tuesday, “is the fact that I have to watch Tucker Carlson to find video footage which the government has but chose not to disclose despite the absolute duty to do so, despite being requested in writing to do so multiple times.”
Prosecutors with the DOJ said Tuesday that “nearly all” of the Capitol security footage Carlson aired was previously available to attorneys representing the riot defendants.
Chansley’s current lawyer, Bill Shipley, contends that his defense team “did not have this material.”
