Judge Wants To Know If DOJ Ignored Its Own Journalist-Targeting Guidelines When Investigating An Infowars Host Who Raided The Capitol

from the terrible-actions,-pertinent-questions dept

Sometimes tough questions about rights have to be asked even when central figures are far from sympathetic. Good case law is sometimes made by bad people (or, at least, people accused of doing terrible things).

But the questions must be asked. That’s what the courts are for. They’re a check against government overreach. And this case, coming via the Volokh Conspiracy, involves a defendant who’s unlikely to gain much mainstream support.

Jonathon Shroyer is a talk show host who works for Infowars. He’s also — according to the DOJ — one of thousands who raided the Capitol building last January. Technically, he’s a journalist, given that he collects information and reports it on his Infowars show. He may not be a journalist in the traditional sense, but there are many people who perform “non-traditional” journalism, even if they haven’t hitched their wagon to an entity mostly known for pushing outrageous conspiracy theories.

Shroyer joined other Infowars figures in a demonstration on January 6th, calling for the election to be overturned. Then he went further. This is from the magistrate’s order [PDF] asking the DOJ to explain itself:

Law enforcement’s review of the videos further revealed that Shroyer entered the restricted area of the Capitol building. In fact, Shroyer was “standing above the crowd on the west side of the Capitol next to the inauguration stage.” Later on January 6, 2021, Shroyer called into an Infowars broadcast from the Capitol grounds and stated that he was on “one side of the Capitol, so we can’t see both sides, but on this side alone there’s probably about 100,000 people. They’ve taken the Capitol grounds, they’ve surrounded the building itself, they’re on the actual building structure. . . . We literally own these streets right now.”

Shroyer definitely shouldn’t have done this. At this time this happened, he was already facing criminal charges for disrupting a House Judiciary Committee hearing. His deferred prosecution agreement forbade him from engaging in any “disorderly or disruptive conduct” on the US Capitol grounds. He also agreed not to engage in any protests or picketing inside any Capitol building.

But Shroyer is technically a journalist, which raises questions about how the DOJ has handled his case. Following Trump’s election loss, plenty of information came to light showing the DOJ was targeting journalists and their sources while supposedly engaging in internal leak investigations. Following these revelations, the DOJ changed its policies and announced it would no longer target journalists during investigations.

Magistrate Judge Zia M. Faruqui wants to know whether the DOJ followed its own guidelines during this investigation. The First Amendment doesn’t protect Shroyer’s trespass or prosecution agreement violations, but there are concerns about the investigation the DOJ apparently didn’t choose to address directly.

In August, the magistrate asked the DOJ to clarify a few things. First, did it consider Shroyer to be a journalist? And, if it did, did it comply with its policies regarding the targeting of members of the media when it went after Shroyer? Finally, the judge asked the DOJ to memorialize its answers to these questions. The DOJ refused to do any of this to the judge’s satisfaction.

The USAO represented that it had followed its internal guidelines but was unwilling to memorialize that or explain the bases for its determinations.

Hence the need for this reiteration of the court’s previous request, one the judge makes clear isn’t voluntary despite the DOJ’s apparent belief otherwise.

The Court issues this addendum opinion in response to the USAO’s break with prior practice, and to ensure that the judicial record accurately reflects: 1) the conversations between the Court and the USAO; and 2) the undersigned’s understanding of the steps taken by the Department to comply with 28 C.F.R. § 50.10.

The government has had no problem doing this in other cases. The magistrate cites two prior January 6th investigations that may have targeted members of the press and the steps the DOJ took to justify the seeking of warrants in these cases — justifications that clearly stayed within the confines of the DOJ’s new press guidelines.

It didn’t do that in this case and Judge Farqui wants to know why. That the underlying criminal acts were unprecedented and extremely alarming does not excuse the DOJ’s lack of compliance in this case.

Yet here the government is unwilling to address its compliance with its internal regulations regarding the press. When questioned by the Court, the USAO’s representatives respectfully stated that they had followed such guidelines but would not formally state this in their pleadings; nor would they memorialize the reasons underlying their determination that Shroyer was not “a member of the news media” who had committed the instant offenses “in the course of, or arising out of, newsgathering activities.” 28 C.F.R. § 50.10(f)(2). The events of January 6th were an attack on the foundation of our democracy. But this does not relieve the Department of Justice from following its own guidelines, written to preserve the very same democracy.

And, while the court says there’s enough evidence on the record now to justify the DOJ’s actions in hindsight, the open question pertains to what the DOJ did to obtain this evidence and how those efforts complied (or didn’t) with its directives on handling cases involving journalists.

The undersigned finds there was probable cause to believe Shroyer committed the above-described violations.

As to the question of whether and how the Department of Justice complied with its policies, the court received an unsatisfactory answer. Yet even if a credentialed journalist engaged in the instant conduct, there would be no question of probable cause for arrest.

The Department of Justice appears to believe that it is the sole enforcer of its regulations. That leaves the court to wonder who watches the watchmen.

As unsympathetic as an alleged Capitol raider who works for a conspiracy theory outlet is, the court — and the public — deserves to know if the DOJ handled this correctly. Journalism can occur anywhere, even within the confines of Alex Jones’ batshit-crazy outrage generation machine. Shroyer may very well have engaged in illegal activity within the Capitol building, but the first steps of any investigation matter, especially when First Amendment rights may be involved.

If the DOJ doesn’t want to discuss its efforts in cases like these, the judge is right to pause proceedings until the court receives a satisfactory answer. If the DOJ ran off its own rails, this is cause for concern.

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Comments on “Judge Wants To Know If DOJ Ignored Its Own Journalist-Targeting Guidelines When Investigating An Infowars Host Who Raided The Capitol”

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38 Comments
Michael says:

Re: Re: Re:

His statement that "We literally own these streets right now" should be enough to disqualify him from any link to journalism. Unless of course he meant that "journalists" own the streets, which seems unlikely.

According to his own words, he was clearly acting as a private citizen rather than as a member of the press.

TFG says:

Re: One important distinction...

Not necessarily.
They could be journalists who participated in and actively promoted illegal acts, which could land them in hot water.

The important point here is whether or not the DoJ treated the case as it should when there are journalists involved, and whether it arrived at the conclusion of probable guilt properly. This essentially the "give a mouse a cookie, he’ll want a glass of milk" problem – if the DoJ isn’t held to task for taking things properly regarding this (horrible example of a) journalist, it can and will lead to shortcuts for other journalists, and the press (as flawed as it is) must needs be able to report on things.

TFG says:

Re: Re:

Nope. Not at all. You’d still be guilty of murder, and could be tried as being guilty of murder.

Journalistic protections are focused on protecting people from being targeted because they are journalists or because they are partaking in journalistic activities.

In the case you described, you would be targeted for murdering someone – your recording of it would be used as evidence that you murdered someone. Critically, you would not be targeted for the act of recording it.

A more apropros example of journalist protections would be: someone records a government official murderging someone – the method of recording was illegal, but they did it.
They hand that recording over to a reporter, who then reports on it.

Journalist protections mean law enforcement should not go after the journalist who reported on it as party to the crime.

bhull242 (profile) says:

Re: Re:

You misunderstand. The question isn’t whether or not this guy committed a crime and should be prosecuted for it. The question is how the government got the evidence to prosecute him with in the first place, what guidelines they followed, and their justifications for doing so.

If they, say, received a tip about the recording from an outside source and watched the publicly available evidence to justify the investigation of this guy in particular, then there’s no problem. If, however, they did something else like place a tracker on him or something, that’d be a problem. (I don’t think the latter is what anyone even suspects happened, but it illustrates the point I’m making here.)

freelunch says:

prosecutorial discretion and the trust of the courts

the DOJ, at least when I was there, acted as if the trust of the courts was its most valued asset. It’s not an asset you buy cheap.

The AG’s memo of last July says "[t]he Department of Justice will no longer use compulsory legal process for the purpose of obtaining information from or records of members of the news media acting within the scope of newsgathering activities."

If I follow this, they are saying that they will not ask the court for a warrant without making the determination that there was an activity outside the scope of newsgathering activities. And this court wants to hear about that determination. (Lots of formal statements of prosecutorial discretion policy drift toward regulating DOJ/court interactions as if they were law.)

So, e.g., if they are asking for an arrest warrant for an act which is illegal and falls outside the scope of newsgathering, this is conceptually easy — so if they are accusing Mr. Shroyer of a violent act, or of interfering with an official proceeding, might be easy. If they are accusing him of something journalists do all the time — failing to disperse or taking photos of the police pushing the crowd — also conceptually easy, within the scope of newsgathering. Who has any doubt that a difficult border of "scope of newsgathering activities" will arise in some future matter?

Shroyer appears to have declared himself to be part of the event not part of the coverage of the event, so it seems the DOJ could easily meet its own test. But that’s not all that’s needed, they also need to leave courts with a high level of trust that they did meet their own test.

Tanner Andrews (profile) says:

Re: prosecutorial discretion and the trust of the courts

they also need to leave courts with a high level of trust

That is not a problem. Judges are incredibly gullible when government officials are speaking. Sure, cops, but also govt attys get an unusual level level of belief.

Outside of courts having their ears filled with government oil, this level of acceptance as to unlikely stories is otherwise rare. You may see it in elderly Aunt Gullible when she is talking to those nice young men on the phone.

Davey (profile) says:

Thank you

Thank you for reporting this objectively. Everybody deserves equal protection under the law.

I hope to see your further legal analysis of Project Veritas vs. New York Times. The Times is framing the as a simple, unconstitutional prior restraint case but it appears that the Times has been actively malicious toward Project Veritas. The November 18 court decision seems to give that argument some weight.

bhull242 (profile) says:

Re: Thank you

Thank you for reporting this objectively. Everybody deserves equal protection under the law.

I concur. While this guy does deserve to be prosecuted, he also deserves due process and equal protection.

I hope to see your further legal analysis of Project Veritas vs. New York Times. The Times is framing the as a simple, unconstitutional prior restraint case but it appears that the Times has been actively malicious toward Project Veritas.

Doesn’t matter. Setting aside whether or not Project Veritas deserves such malice (which it arguably does), that doesn’t change the fact that the preliminary injunction (as opposed to injunctive relief after the legal and factual merits of the case have been fully adjudicated) is prior restraint, which is unconstitutional in all but a very select few circumstances that don’t apply here even taking Project Veritas’s allegations as true.

Furthermore, in defamation law, being actively malicious has nothing to do with whether or not specific statements are defamatory. Despite the name, “actual malice” has nothing to do with malicious intent; it’s about either knowing the statements were false or harboring serious doubts (or strong reasons to doubt) about their accuracy.

Whether or not the Times has or has not been “actively malicious” towards Project Veritas, that doesn’t make the preliminary injunction not a case of unconstitutional prior restraint, nor does it mean that Project Veritas has an actual case for defamation with actual malice.

Tanner Andrews (profile) says:

Re: Re: Thank you

he also deserves due process and equal protection

Not a bit of it. What he deserves is probably public denunciation and possibly worse.

He is entitled to due process and equal protection. If we limit these things to those who “deserve” them, then who decides as to the deserving? We could put the cart before the horse, providing due process to those we deem deserving, but that means that the falsely accused will often be left out.

Bloof (profile) says:

He recorded himself hanging out with members of far right groups and burning a Black Lives Matter flag with them in ‘honour’ of the Proud boys leader who had been arrested for doing the same thing so any even without prior court orders against him, any pretense he was there acting as a ‘journalist’ was out of the window before the insurgency had begun.

That Anonymous Coward (profile) says:

The Judges needs to be careful… bad things happen to those who point out how magically "bad people" don’t have the same alleged rights & courts rubber stamp stupid actions to protect convictions of those deemed bad when how they were tagged as being bad would never fly with even a cursory reading of the law.

Assholes are assholes but allowing their rights to be violated for being an asshole leads to bad things.
We’re all the asshole in someones story.

Anon says:

What??

Not clear from the article in what way the DoJ targeted this journalist in a way they shouldn’t. they are entitled to target him for his activities that a re clearly illegal (which it appears they have) and no indication that they targeted him over his activities as a journalist. Did they try to discover his sources for news reports? Did they try to obtain his secret notes that he used to produce news items? See who he was using his phone to communicate with while not illegally on the capitol grounds?

The only concern I have is this article mentions he was on the outside. Did he physically participate in the crush that overwhelmed the Capitol Police? Did he enter into the building itself? if they are going after people for climbing the outside steps or the inauguration platform, that seems overkill to me.

If he did trespass and participate in physical force, how is that any different than the hundreds who also did so an posted their activities – with photo and video – on social media? At what point does publishing personal expression (of your possibly illegal activities) stop being journalism?

bhull242 (profile) says:

Re: What??

Not clear from the article in what way the DoJ targeted this journalist in a way they shouldn’t.

That’s the whole point. We don’t know whether or not the DoJ targeted him in a way they shouldn’t because they refuse to explain how or why they targeted him or how they justify it under their guidelines.

Personally, I think it’s likely that they did follow the rules, but they still have to explain themselves to the judge.

they are entitled to target him for his activities that a re clearly illegal (which it appears they have) and no indication that they targeted him over his activities as a journalist. Did they try to discover his sources for news reports? Did they try to obtain his secret notes that he used to produce news items? See who he was using his phone to communicate with while not illegally on the capitol grounds?

Those are the sorts of things the judge is trying to find out.

The only concern I have is this article mentions he was on the outside. Did he physically participate in the crush that overwhelmed the Capitol Police? Did he enter into the building itself? if they are going after people for climbing the outside steps or the inauguration platform, that seems overkill to me.

The issue, at least partially, is that he had already had charges against them that were deferred so long as he agreed not to do certain things on Capitol grounds, and it appears he is violating that agreement. So, basically, part of this is whatever he was charged with earlier, not just his actions on that day in particular.

If he did trespass and participate in physical force, how is that any different than the hundreds who also did so an posted their activities – with photo and video – on social media? At what point does publishing personal expression (of your possibly illegal activities) stop being journalism?

Again, these are the sorts of things the judge is trying to find out what the DoJ thinks on this issue.

As a preliminary matter, though, he is technically a journalist associated with a “journalistic” outlet. He is also sometimes saying things in a reporter-like manner, referring to the insurrectionists as “they” multiple times while calling into a live broadcast of a program that he is officially an employee of. Those are not characteristic of most of the others who posted evidence of their wrongdoing online.

But yes, one key area is whether or not the DoJ considered Shroyer as a journalist, and they are remaining mum about that so far.

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