Nearly 50 FBI special agents and members of the Joint Terrorism Task Force (JTTF)—including U.S. Army counterintelligence, Homeland Security, and Naval Criminal Investigative Service (NCIS) personnel—were on duty Jan. 6, 2021, and later provided affidavits in federal Jan. 6 criminal cases, a new court filing says.
A motion by defendant William Pope of Topeka, Kansas, suggested that many of those agents were on U.S. Capitol grounds during the protests and breach that took place on that day.
Mr. Pope wrote that the presence of so many federal agents should have resulted in a more aggressive security posture by police that would have prevented violence and the need for criminal cases later filed against nearly 1,400 people.
“...The magnitude of the government’s actions on and before January 6 were so outrageous and shocking that they constitute an induced entrapment of all who were at the Capitol regardless of predisposition,” Mr. Pope wrote.
Former U.S. Capitol Police (USCP) Chief Steven Sund said the FBI did not share any intelligence that would have indicated the violence that played out that day. The USCP intelligence division did not share all of the information it had gathered with Mr. Sund, who later told a U.S. House panel, “Jan. 6 was an intelligence failure.”
Mr. Pope produced a spreadsheet of nearly 50 FBI special agents and other officers from the Bureau’s Joint Terrorism Task Force who indicated in criminal charging documents that they were on duty on Jan. 6.
“There is now ample evidence that the FBI had a heavy presence at the Capitol on January 6, which is even more alarming considering the fact that we now know they had intelligence that was not shared with other agencies,” Mr. Pope wrote, asking Judge Rudolph Contreras to reconsider his request for discovery on undercover FBI agents and other law enforcement agency activities on Jan. 6.
“This constitutes outrageous government conduct.”
The U.S. Department of Justice has not yet responded to Mr. Pope’s motions. The DOJ has a longstanding policy of not commenting on cases except in court filings.
The Epoch Times asked the FBI via email for an estimate of how many personnel were on the ground at the Capitol on Jan. 6. The FBI National Press Office replied: “We’re not able to provide you with that information.”
Mr. Pope said that “it is likely that hundreds of other FBI agents were also on duty on January 6, but have not overtly disclosed their on-duty presence.”
‘Raindrop Theory’
Mr. Pope indicated part of the defense in his criminal case will use a variation of the controversial “Raindrop Theory” employed widely by the U.S. Department of Justice to argue that each protester at the Capitol helped create conditions that led to violence and a delay in counting of Electoral College votes by a joint session of Congress.He argued that each undercover federal agent at the Capitol was a “raindrop” that was responsible for the chaos at the Capitol because the FBI and other agencies did not act on intelligence that would have resulted in more extensive security and prevented the breach and violence.
“I am seeking all discovery related to failure to act on intelligence to enhance the Capitol’s security posture, and all discovery related to undercover government operations at the Capitol, since such discovery is needed to demonstrate outrageous government conduct and will be exculpatory to my defense within the framework of the Raindrop legal theory,” Mr. Pope wrote.
Mr. Pope’s new motions ask Judge Contreras to reconsider his decision based on new information.
Mr. Pope wrote that he is “adopting the ‘Raindrop Theory’ as a legal defense to show that agencies had intelligence but did not alter their security posture, thus allowing conditions to exist that induced the field flooding; and that persons in the crowd were working undercover for the same government agencies, and that their mere presence as raindrops, even if ‘modestly behaved,’ increased the chaos and flooding of the field.”
The government “allowed conditions to exist that made flooding possible by withholding intelligence and intentionally maintaining a reduced security posture,” Mr. Pope wrote, and “saturated the crowd with their own agents and informants (raindrops), including at the initial breach points, which caused the field to be flooded.”
Failures by the FBI, Capitol Police, Metropolitan Police, Homeland Security, and the Department of Defense led to the conditions that developed on Jan. 6, he said.
“If it were not for these failures, I would have never perceived Capitol grounds to be open to the public, and there would be no entry into the Capitol, or charges filed,” Mr. Pope wrote. “These failures were the result of outrageous government conduct, and they resulted in a trap for the hundreds of Americans who have now been charged for January 6.”
In citing his intent to use an entrapment by outrageous government conduct defense, Mr. Pope cited the 1973 Supreme Court case United States v. Russell. The High Court wrote in that case that “we may someday be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.”
Navy Warning
The U.S. Navy told its regular members not to attend the Jan. 6 speech by former President Donald J. Trump, Mr. Pope said, citing a Navy email entered into evidence in the case of United States v. David Elizalde.Mr. Elizalde, 47, a Navy petty officer, was found guilty in a December 2023 bench trial of parading, demonstrating, or picketing in a Capitol building on Jan. 6, a petty misdemeanor. He was sentenced on April 19 to 30 days of home detention and fined $2,500.
“The fact that the Navy took the unusual step of ordering their regular crews to not engage in First Amendment activity or attend a speech by their Commander and Chief [sic] on January 6, indicates that the Navy possessed intelligence that the events of January 6, 2021, would not be ordinary,” he wrote.
“The Navy’s decision to share this warning with their own members, but not the general public, is evidence of outrageous government conduct,” he said.
“The Pentagon seemingly had enough intelligence to deploy commandos and warn Navy members to stay away from January 6 events, but their operational posture on intelligence indicates that rather than entirely prevent what happened, they were willing to allow a trap to be set for ordinary Americans like myself,” Mr. Pope said.
Among the federal personnel working on Jan. 6, Mr. Pope cited the case of Charles Robertson, a U.S. Army Counterintelligence special agent from Colorado and a member of the FBI’s Joint Terrorism Task Force.
Mr. Pope cited what he called “outrageous conduct” by MPD undercover officers, including “repeatedly urging people to advance up the steps to the Capitol, thanking people who removed fences, and congratulating people who broke windows.”
The DOJ has not produced full discovery from the more than two dozen undercover officers working for the MPD’s Electronic Surveillance Unit, he said. Video, photographs, and investigative reports are still missing despite requests that they be produced by the DOJ, Mr. Pope said.
“The fact that it has taken the government more than three years to produce these files, and that they are still withholding many others, is extremely alarming,” he wrote. “This slow roll of discovery obstructs defense preparations, especially in the context of my Raindrop Theory defense. The court should not allow the government to continue delaying remaining productions.”
