The defense attorney for a member of the Oath Keepers charged with seditious conspiracy stemming from the U.S. Capitol unrest on Jan. 6, 2021, has filed a motion to intervene in a lawsuit that seeks to compel the U.S. Capitol Police to release more than 14,000 hours of video from surveillance cameras, smart phones and police body-worn cameras.
“Having seen the documents and records under the court’s protective order, Jonathon Moseley can testify and affirm, and hereby does so, that there is no valid reason for the documents and records to be withheld from the public,” Moseley wrote in a Feb. 11 motion in U.S. District Court for the District of Columbia.
U.S. District Judge Florence Y. Pan denied Moseley’s motion to intervene, ruling he did not make sufficient effort to determine how Judicial Watch and U.S. Capitol Police viewed his motion.
“The movants do not have a conditional right to intervene under a federal statute, nor do they state a claim or defense that shares with the main action a common question of law or fact,” Pan wrote.
The U.S. Congress is exempt from the Freedom of Information Act. The U.S. Capitol Police, as a subsidiary of Congress, isn’t bound by the 1966 law that generally requires the federal government to disclose records and other information to the public upon request.
Judicial Watch sued Capitol Police in January 2021 under the common-law right of access, a legal principle that the public has a right to access public records and documents.
Judicial Watch sued for the release of all video recorded between noon and 9 p.m. on Jan. 6, 2021, and for emails between the U.S. Capitol Police executive team and the police board, as well as emails between police and the FBI, U.S. Department of Justice, and the Department of Homeland Security.
Capitol Police filed a motion claiming it isn’t bound to release records due to sovereign immunity, a legal doctrine that shields governments from being sued for civil wrongs.
Despite the Capitol Police’s stated concerns that releasing the trove of video would expose security means and methods, Moseley said he sees a different reason for the secrecy.
“They don’t want the public to see that the vast majority of what went on was very peaceful,” Moseley told The Epoch Times. “There were the violent videos they’ve shown, are all in just one location, or in a courtyard. You know, they keep showing over and over again this battle in the archway—that’s just one entrance out of a building that’s 700 feet long. So I think it would dilute their narrative to show everything.”
Moseley said that on a recent tour of the Capitol arranged by the U.S. Attorney’s Office for the District of Columbia, Capitol Police forbade the defense attorneys and investigators from photographing certain areas, including things that are visible from the street. They also prohibited photographs of the galleries in the House of Representatives.
“They designated that as non public—we couldn’t take photographs of the galleries,” Moseley said. “I’m like, ‘What the heck?’ These will be visible during the State of the Union to anybody around the world.
“So that’s one of the big things, their claim that this would compromise the Capitol’s security to show these things.” Moseley said. “It’s one of the things that I wanted to knock down and say, ‘You can’t hide behind that as an excuse.’”
Moseley expressed frustration that the government’s selective release of video clips and the nearly constant condemnations of Jan. 6 defendants by some jurists and members of Congress have tainted the jury pool for the trials scheduled to begin in the coming weeks and months. He said he will seek a change of venue for the Meggs case.
“There’s been nonstop condemnation of these defendants by the attorney general, by other judges as they’ve been sentencing people,” Moseley said. “They’ve made comments that go far beyond the individual that they’re talking about, made generalized condemnations of all the defendants, most of whom haven’t gone to trial yet.
“There’s also the concern that the ability to pick and choose what’s released prevents a check and balance on the government and the Congress,” Moseley said. “If they knew everything was public, they might be a little more careful with what they say.”
The jury pool in the District of Columbia has been “incurably influenced,” Moseley wrote in his motion to intervene in the Judicial Watch case.
“Kelly Meggs as a criminal defendant is being personally prejudiced by the one-sided tsunami of false but prejudicial information,” Moseley wrote, “while the government—including the U.S. Capitol Police—pick and choose what information with which to smear these defendants in public and condemn them in public, while withholding an equal measure of exculpatory information.”
In a filing in the Judicial Watch case, Thomas DiBiase, general counsel for U.S. Capitol Police, said the release of video footage could provide valuable security information to people who might seek to attack the Capitol again.
Video can also be considered security information that is “sensitive with respect to the policing, protection, physical security, intelligence, counter-terrorism actions or emergency preparedness.” Of the more than 14,000 hours of footage, only about 17 hours to date was designated “security information,” DiBiase said.
