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.