Judge Upbraids Prosecutors Who Offered False Information about Location of Kamala Harris on Jan. 6

Vice President Kamala Harris in the U.S. Capitol in Washington, on the anniversary of the Capitol breach, on Jan. 6, 2022. Stefani Reynolds/Pool/Getty Images

Federal prosecutors who falsely said then-Vice President-elect Kamala Harris was in the U.S. Capitol on Jan. 6, 2021, were scolded by a federal judge on Feb. 10.

The government claiming Harris was in the building despite previously admitting she was not “suggests a certain lack of attention and care in the prosecution of this case, undermining any confidence the Court can have in the Government’s representations,” U.S. District Judge Trevor McFadden, a Trump nominee, wrote in an order.

Prosecutors claimed that both Harris and the vice president at the time, Mike Pence, were present at the Capitol on Jan. 6 while asking McFadden to limit cross-examination of Secret Service agents who were protecting Pence that day. They also listed the wrong year for when the Capitol breach occurred.

The superseding indictment against Nicholas Rodean, the defendant, “references the presence of the Vice President and Vice President-elect, who were protected by the U.S. Secret Service, at the Capitol on January 6, 2022,” prosecutors wrote.

Limiting cross-examination of the agents is needed because “the very nature of the Secret Service’s role in protecting its protectees implicates sensitive information related to that agency’s ability to protect high-ranking members of the Executive branch and, by extension, national security,” they added.

McFadden was displeased about the filing, which came several months after at least two federal prosecutors admitted that Harris was not present in the U.S. Capitol at the time of the breach.

“The Government has a problem. The superseding indictment says that then Vice President-elect Harris was at the Capitol when Rodean entered it. She was not,” the judge said in his 3-page order.

“News outlets reported this mere days after January 6. And recognizing that fact, the Government has, in other cases, filed a superseding indictment to correct its error,” he wrote. “Yet here, over a year after first charging Rodean under § 1752(a) and nearly a year after misleading the grand jury about the whereabouts of the Vice President-elect, the Government has still not explained or remedied its mistake. The Government compounds this error by repeatedly referring to the presence of the Vice President-elect in the Capitol in its motion in limine.”

Because of the “misleading charges,” McFadden rejected the government’s attempt to limit cross-examination of the Secret Service agents.

Susan Lehr, the assistant U.S. attorney who submitted the motion containing erroneous information, did not respond to a request for comment.

Charles Burnham, a lawyer representing Rodean, declined to comment.

Prosecutors have shed little light on why they initially claimed Harris was in the Capitol when it was breached.

Superseding indictments in cases against two other defendants, Christian Secor and Matthew Council, did not mention Harris after she was listed in indictments as part of a charge of disorderly and disruptive conduct in a restricted building or grounds.

Assistant U.S. Attorney Jamie Carter told the court during the sentencing of Eric Torrens, another defendant, in late 2021 that the government had “recently learned” Harris was not in the Capitol when the building was breached, according to Politico.

Nicholas Smith, a defense attorney for some of the Jan. 6 defendants, told the outlet that Harris not being in the Capitol raises questions about when, exactly, Pence left the building.

“This might turn on where Pence went—a question [the government] is trying to preclude cross-examination on,” Smith said. “If Pence was in a garage under the Capitol, [the government] has a strong argument that’s still the ‘building.’ However, reporting also suggests Pence went right to the underground tunnels. The next question becomes are those tunnels still Capitol ‘grounds’ even if not the ‘building?’”