Words can only describe so much from the nearly 500 criminal cases against rioters who overtook the US Capitol on January 6.
Hours of media and live-streamed participant video have been available since that day, capturing crowds mounting scaffolding built for Inauguration Day, Trump supporters gleefully running through the building’s hallways and the Senate chamber, and even the death of one participant shot by a police officer through a doorframe. But much of the most significant video capturing the most severe violent crimes from that day still can’t be seen.
That’s because the Justice Department and the federal courts haven’t proactively made available footage from surveillance cameras around the Capitol and from DC Metropolitan police officers’ body cameras.
Last week, the public finally began to see some of that video, because a group of 16 major media outlets led by CNN sued for access. The video releases – just a few in the media coalitions’ continued pursuit of dozens – come as some Republicans, inspired by former President Donald Trump’s election lies, are denying what happened on January 6, despite injured law enforcement officers like DC Police’s Michael Fanone pushing for officials to acknowledge the Trump supporters’ unlawful brutality that day.
The effort to get footage released has taken months. In some cases, the videos became evidence in public portions of Capitol riot defendants’ cases weeks ago. But it hasn’t even been seen by reporters covering the court proceedings because of the peculiarities of video technology, the unprecedented sweep of the insurrection investigation and structural approaches in the federal court system.
Rolling the tapes in court
CNN’s work to view video used in court began in March. Two months after the insurrection, federal defendants were appearing in court each day by the dozen. As defendants came through DC District Court following their arrests in their home states, judges held waves of hearings about whether to detain each of them. At those hearings, prosecutors needed to prove the alleged dangerousness of each defendant, showing how violent some were on January 6, especially toward police. The best way to do it, in many cases: Roll the January 6 tapes.
The tapes showed from police officers’ perspectives and unflinching surveillance cameras the violence of the pro-Trump crowd – law enforcement colleagues beaten and dragged and crushed in doorframes; police lines collapsing, completely overwhelmed.
Typically the court press corps sits in the courthouse to watch hearings where these moments are laid out in excruciating detail. But because of coronavirus restrictions, we could only listen to DC federal court proceedings over the phone. The judges, lawyers and defendants, however, recreated their courtrooms over Zoom videoconferences.
Another technological hitch kept these videos out of sight: While most evidence used in early federal criminal proceedings gets posted on an online public docket, called Pacer, that system can’t house videos.
As these limitations became more apparent every day, CNN and other news outlets started pushing for access. Thousands of hours of video became core to the Justice Department’s prosecution of the siege – an overwhelming trove of evidence that would be rolled out gradually to prove scene by scene the behavior of hundreds of rioters.
In one case, against riot defendant Emanuel Jackson, NBC wrote to his judge and received limited access to a video from the case. In another, Judge Royce Lamberth ordered the court to post videos on its website from the case against the so-called “Q Anon Shaman” Jacob Chansley, who had become famous for posing with a horned headdress and a spear-tipped flagpole at the vice president’s desk in the Senate.
Then the Justice Department arrested two pro-Trump ralliers for spraying Capitol Police Officer Brian Sicknick, who later died, and two other officers with mace-like chemicals along the police line at the front of the Capitol building. It was a significant break in a major January 6 assault case.
The West Virginia court where one defendant, George Tanios, first appeared allowed reporters to view his detention hearing as a livestream video. Prosecutors played videos of the Sicknick attack one after another, showing how each officer physically reacted to the assault. The judge in West Virginia, Michael Aloi, called the video of Sicknick “surreal” and noted how he was impacted by the severity of the chemical spray hitting the officers’ faces.
“It’s hard for me not to look at this as anything other than an assault on our nation’s home, and everything that is important to us as a people,” Aloi said at the hearing.
Of the three defendants who had video from their court cases released several weeks ago, Tanios and Chansley are fighting their charges, while Jackson was just recently charged formally and is set to be arraigned in July.
Power of video
By March, I was cataloguing in a spreadsheet every time I or other CNN reporters and producers heard video played in DC District Court hearings.
As a TV network, video is crucial to our storytelling. Crime and justice – even court itself – comes to life when video is added to our reporting toolbox. For every legal brief, judge’s opinion or hearing we write about or discuss on air, seeing an assault or a victim’s reaction replayed puts into focus the stories of these cases.
By this spring, shaky livestreamed social media video and network TV wide shots of the Capitol set the scene, and Democrats at then-President Donald Trump’s impeachment trial used it to show the impact he had on his followers. But in covering the judicial response to the attack, we were still struggling to recreate the moments that the Justice Department has since found to be most the egregious, and to revisit them critically as rioters face charges.
Take, for instance, an assault that has so far prompted DOJ to charge five rioters. The rioters allegedly took down three officers, stripping them of their gear, dragging them and beating them with crutches, flagpoles, batons and bare hands. Prosecutors have used the officers’ body camera footage in court.
“Every time I look at these videos, it just chokes me up,” Judge Emmet Sullivan said during a hearing in the case, commenting on video the public and press corps has not seen. “Let me stop for one second. It’s shocking what these videos depict. It’s shocking. That this is a battle scene at the United States Capitol, the heart of democracy in Washington, DC. I had to look at these a couple of times before it really sunk in what I was watching and it’s hard to describe. It’s hard to believe.”
Without being able to see the tapes, our reporting team cross-referenced dozens of pages of court records to understand the assault blow-by-blow, as judges and attorneys wrote to describe them, noting each defendant and officers’ movements.
At the same time, as we struggled to parse specifics of the most horrific assault cases from January 6, the nation was moved by an unrelated court proceeding that, ironically, rested upon the power of video: The death of George Floyd.
The resonance of the video that bystander Darnella Frazier shot on her cell phone of Floyd’s murder in Minneapolis last year, and the live footage from the trial of former Officer Derek Chauvin for Floyd’s death, had sparked a national reckoning and amplified calls for an overhaul of policing in this country.
“Video helps the American people trust that justice is being done,” Gabe Roth, executive director of the court transparency advocacy group Fix the Court, told me recently. “If you see something, you’re more likely to internalize it, more likely to understand it.”
“This is a major moment in American history that needs to be digested and seen and understood,” he added, about January 6. “If you’re piecing together the story of the day, you want to be able to have every angle.”
Impediments to access
I repeatedly inquired with the court and the Justice Department about the Sicknick assault tapes and other videos shown in Capitol rioter hearings, and received assurances that the public evidence soon would become available – once a technological solution was found that could allow its distribution.
A video portal never came.
Instead, a debate over video in the Capitol riot cases emerged in court as cases progressed, with prosecutors first needing to share the evidence with rioters’ defense teams. The Justice Department shared the view of the Capitol Police, whose top lawyer wrote in court early this spring that the public release of closed-circuit video around the Capitol could create a security risk. Neither seemed interested in a solution that could make video accessible to the public on the day it was newsworthy.
The Justice Department, now led by former appellate Judge Merrick Garland, argued it believed video from early hearings, if distributed widely, could unfairly hurt Capitol riot defendants’ access to fair trials – even if that video was used in open court and not protected by a judge’s order to keep it under seal, meaning only accessible by the parties. Still, judges were deciding to release or detain defendants, often noting the horrifying violence toward police the video showed. Few still could see what they saw.
The inability of the public to see the footage came as Republican lawmakers and Trump himself tried to sugar-coat the insurrection, attempting to tone down the violence, glorify the rioters as patriots and “tourists,” and falsely recast the attackers as attackees.
Judge Paul Friedman pointed out the paradox at a hearing in late April. “One thing I will say about the videos is I wish that every member of Congress would be required to view them, because they’re chilling,” Friedman said.
“They’re really upsetting. And those who have views about what happened or didn’t happen without hearing or seeing it with their own eyes it’s – of course a lot of people who have views on what happened who were actually there. But each person, each senator and each congressperson saw it, the events of the day from a different perspective and were not everywhere at every given moment, and they saw snapshots.”
Newsrooms banding together
Our efforts to see the video from court inched forward, and I worked with the DC District Court to be able to sit in on a few Capitol riot hearings – becoming the sole outside spectator witnessing those hearings in person in April.
The prosecutors by then largely weren’t playing video in court anymore. Instead, they were sending files directly to judges, then in court hearings simply spoke about what was on the tapes. At the hearings I attended, I could see the talking heads of lawyers on a video screen conversing with a judge physically present on the bench, and riot defendants piped into the courtroom by video from a camera at the DC Jail, an unusual approach for defendants precipitated by a need for pandemic distancing.
After one proceeding – and my continued requests for access – the Justice Department in late April gave a thumb drive to the courthouse of body camera and Capitol surveillance video from the Sicknick assault and another case. I watched it in an empty courtroom with a court staffer, unable to show even the rest of my newsroom the footage of Sicknick struggling several minutes after the attack, or of another rioter picking a fight with police inside a Capitol hallway, then being thrown out the door.
Drew Shenkman, a CNN lawyer who works on First Amendment projects especially out of Washington, realized our effort needed the help of courtroom lawyers from the firm Ballard Spahr, which often sues on behalf of media organizations seeking transparency and access.
Shenkman and the outside legal team, led by attorney Charles Tobin, passed word of our effort to other media outlets as we sought the Sicknick videos. More than a dozen news organizations ultimately won wider access to the police body camera and surveillance video. That release came April 28, almost six weeks after the press corps first viewed it in court and I watched it semi-privately for a second time in April.
That was just one case, among hundreds in the Capitol riot investigation.
The media coalition then asked DC District Court Chief Judge Beryl Howell for broader accessibility. Though she sided generally with access to video, she determined each judge overseeing Capitol riot cases should make decisions separately on whether to release video shown in their courtrooms. That prompted all 16 media outlets to ask judges across the DC federal court this month for access to video in 17 cases.
The news outlets that have banded together are: CNN, ABC News, NBC News, CBS News, NPR, the Associated Press, Buzzfeed News, Dow Jones and its newspaper the Wall Street Journal, Gannett, E.W. Scripps, the New York Times, Pro Publica, the Los Angeles Times, the Washington Post and the broadcasters Gray Media Group and Tegna.
“In the face of growing denialism about January 6,” Shenkman said this weekend, “video is the undeniable record. The officer-worn body cameras are especially important. The assaults on officers that day were real and the videos, while tough to watch, show that the attacks were incredibly violent.”
Three releases last week
Following the media coalitions’ filings at the beginning of June, many judges have responded quickly. Three judges already ruled (in addition to the Sicknick assault video release), prompting the Justice Department to make public last week new video in the cases against Capitol riot defendants Patrick McCaughey III, Thomas Webster and Scott Fairlamb, all of whom are contesting their charges. The newly available footage shows the crowd in a tunnel into the Capitol pushing against screaming officers, Fairlamb taunting and shoving a MPD officer, and Webster wielding a pole then wrestling police.
In just a few days, the release of the footage has renewed the conversation around the violence of Trump supporters toward police, who were attempting to keep order in the crowd and protect the Capitol.
More than a dozen of the media coalition’s video access requests still aren’t decided, and the Justice Department in some has asked to block rebroadcasting of video, if it’s released.
In one case, a defendant who at the time was a former Trump State Department political appointee, seeks to keep private police body camera and surveillance footage used in his case. It allegedly shows the then-government official, Federico Klein, pushing a shield into an officer to break the police line and using the shield to wedge open doors to the Capitol. Klein claims the video’s release at this time will destroy his ability to have a fair trial. He has pleaded not guilty. Another Capitol riot defendant seeks to make surveillance footage more accessible because he believes it’s exculpatory.
The Justice Department continues to arrest new defendants. And the media’s push for access is far from over.
Investigators still seek to identify more than 250 people they believe were violent or assaulted police on January 6, according to the DOJ about two weeks ago.
None of the defendants have gone to trial yet. The trials will likely bring another set of courthouse moments where video becomes crucial to understanding the ferocity of the uprising.