Is Attorney General Garland’s Justice Department being forthright about the case against Jacob Chansley? Chansley is the so-called “QAnon Shaman,” the shirtless protester wearing horns on January 6, 2001. We now know that while the government was offering him a plea deal on a charge of obstruction, the government was in possession of footage showing Chansley being peacefully escorted by police officers around the corridors of the Capitol on January 6.
Chansley took that plea deal rather than face a trial and is now in the big house on a four year sentence. Yet would he have taken that deal had he known about the footage the government was holding? Legal ethics and Supreme Court precedents clearly obligate the government to disclose any evidence it was holding that might — merely might — be exculpatory. Yet according to Chansley’s lawyer at the time, it didn’t.
That is a shocking development. Americans know about it because of Speaker McCarthy’s decision to share with Tucker Carlson of Fox News footage captured by government cameras inside the Capitol. Our A.R. Hoffman raised the issue in his interview with a veteran defense lawyer, Harvey Silverglate, who warned that Attorney General Garland is now under a legal obligation to get this evidence to the court and defense.
It does not matter, Mr. Hoffman quotes Mr. Silverglate as explaining, whether the prosecuting attorney who handled Chansley’s case was himself in possession of the footage. The very fact that the tapes were held by the government imposes a duty to bring “Brady evidence” to the court and the accused as soon as any member of the government became aware of its existence. It’s now possible that Chansley could seek a new trial.
We carry no brief for Chansley. After joining the mob that breached the Capitol on January 6, Chansley, brandishing a spear, shouted profanity-laced tirades calling Mr. Pence, the hero of the day, a “traitor” and left a threatening note on the vice president’s desk in the Senate. “It’s Only A Matter of Time,” the note warned. “Justice Is Coming!” Prosecutors allege that Chansley was among the rioters aiming “to capture and assassinate elected officials.”
Yet we do carry a brief, so to speak, for due process. Chansley recently sought to appeal his conviction on the single charge, but faced what is typically an insurmountable hurdle — his own guilty plea. In what CNN called a “sprawling speech,” Chansley confessed in court that “I broke the law.” He cited Gandhi, Jesus, and Clarence Thomas. If it turns out, though, that the government withheld evidence, Chansley might yet have a chance.
Though a withdrawal of his plea might open him to a trial on broader charges. Under the terms of the deal, after all, the other charges against him were dropped. These included accusations of “Civil Disorder,” “Entering and Remaining in a Restricted Building,” “Disorderly and Disruptive Conduct in a Restricted Building,” and “Violent Entry and Disorderly Conduct in a Capitol Building.”
Which brings us back to the question of whether the government is being forthright. In a filing in another J6 case, submitted after Mr. Carlson’s broadcast, the Justice Department notes that “nearly all” the footage Mr. Carlson showed on Fox “has long been in the government’s production to defense counsel.” It says that it provided “7.36 terabytes of information” and “over 4.91 million files.” What, though, does “nearly all” mean?
Chansley’s lawyer at the time, Albert Watkins, is telling Mr. Carlson that whatever the government disclosed did not include the crucial footage of Chansley with several officers peacefully walking around the Capitol’s corridors. Had Chansley known of such tapes, maybe he would have declined to plead guilty. There is no doubt that our constitutional foundations were tested on January 6. It would be a double tragedy to let due process protections slide, in pursuit of the January 6 rioters.
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