Magistrate Judge Expresses Concerns About DOJ's Not Explaining How It's Complying with Policy Related to Getting Information from News Media

“The events of January 6th were an attack on the foundation of our democracy. But this does not relieve the Department of Justice from following its own guidelines, written to preserve the very same democracy.... [This case] leaves the court to wonder who watches the watchmen.”

From Magistrate Judge Zia Faruqui's opinion in U.S. v. Shroyer (D.D.C.), decided in August (and talked about in some news outlets then), but just posted on Westlaw:

On August 19, 2021, the Court issued an arrest warrant for Jonathon Owen Shroyer (a/k/a Jonathan Owen Shroyer), "a Texas-based talk-show host associated with the website Infowars (www.infowars.com)." The Department of Justice has recently updated its policies on the investigation of media members, noting the importance of a free press to a vibrant democracy. As part of its review, the Court inquired if the Department of Justice had complied with 28 C.F.R. § 50.10 ("Policy regarding obtaining information from, or records of, members of the news media"). The Department refused to provide an answer on the record. The Court issues this addendum opinion to ensure that the record accurately reflects: 1) the conversations between the Court and the Department of Justice; and 2) the Department's break with its prior practice of confirming its adherence to these regulations.

{In response to a draft copy of this Addendum Order, the Department of Justice submitted the attached letter. It misses the mark. True, the Department of Justice retains the right to do what it wants with these regulations. However, this renders the Department of Justice's newfound silence no less concerning. The Department of Justice has volunteered such information in the past without any demonstrable harm to its own deliberative process. Moreover, the central question was not how they complied with the regulations, but if they did.} …

On August 19, 2021, the U.S. Attorney's Office (USAO) submitted a criminal complaint, statement of facts, and arrest warrant (collectively, the "Complaint") against Shroyer. The Complaint alleges that Shroyer traveled to Washington, D.C., in advance of January 6, 2021, to publicly urge people to stop the certification of the Electoral College vote. The Complaint linked to a video on the Infowars website from a January 5, 2021, rally in which Shroyer "gave an address in Freedom Plaza in Washington D.C., during which he stated: 'Americans are ready to fight. We're not exactly sure what that's going to look like perhaps in a couple of weeks if we can't stop this certification of the fraudulent election … we are the new revolution! We are going to restore and we are going to save the republic!'"In another video posted to the Infowars website on January 5, 2021, Shroyer "called into an Infowars live broadcast and said: 'what I'm afraid of is if we do not get this false certification of Biden stopped this week. I'm afraid of what this means for the rest of the month … Everybody knows election was stolen … are we just going to sit here and become activists for 4 years or are going to actually do something about this … whatever that cause or course of cause may be?'"

The Complaint notes that Shroyer was featured in promotional material circulated by Infowars including a graphic of Shroyer and others in front of the Capitol building urging listeners to "Fight for Trump" on January 6, 2021. Video footage from January 6, 2021, revealed that Shroyer marched to the U.S. Capitol from the Ellipse shortly before the mob breached the U.S. Capitol. One video depicted Shroyer "marching with other individuals, leading a crowd of people in a '1776!' chant as the host of the Infowars show on which the video was streamed stated, 'Alex Jones at this moment is leading the march toward the Capitol building.'" "In the same video, [Shroyer] can be heard telling the crowd, 'today we march for the Capitol because on this historic January 6, 2021, we have to let our Congressmen and women know, and we have to let Mike Pence know, they stole the election, we know they stole it, and we aren't going to accept it!'"

Law enforcement's review of the videos further revealed that Shroyer entered the restricted area of the Capitol building. In fact, Shroyer was "standing above the crowd on the west side of the Capitol next to the inauguration stage." Later on January 6, 2021, Shroyer called into an Infowars broadcast from the Capitol grounds and stated that he was on "one side of the Capitol, so we can't see both sides, but on this side alone there's probably about 100,000 people. They've taken the Capitol grounds, they've surrounded the building itself, they're on the actual building structure…. We literally own these streets right now." …

In its August 19, 2021, Complaint, the USAO submitted that there was probable cause to believe that on January 6th, Shroyer violated 18 U.S.C. §§ 1752(a)(1)–(2), which make it a crime to (1) knowingly enter or remain in any restricted building or grounds without lawful authority to do so, and (2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engage in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions; or attempts or conspires to do so. For purposes of § 1752, a "restricted building" includes a posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service, including the Vice President, is or will be temporarily visiting, or any building or grounds so restricted in conjunction with an event designated as a special event of national significance.

The USAO further submitted that there was probable cause to believe that on January 6th, Shroyer violated 40 U.S.C. §§ 5104(e)(2)(D)–(E), which makes it a crime to willfully and knowingly (D) utter loud, threatening, or abusive language, or engage in disorderly or disruptive conduct, at any place in the Grounds or in any of the Capitol Buildings with the intent to impede, disrupt, or disturb the orderly conduct of a session of Congress or either House of Congress, or the orderly conduct in that building of a hearing before, or any deliberations of, a committee of Congress or either House of Congress; (E) obstruct, or impede passage through or within, the Grounds or any of the Capitol Buildings….

On August 19, 2021, the undersigned had a telephone conference with representatives of the USAO regarding the Complaint. The undersigned inquired as to whether:

- the Department of Justice considered Shroyer to be a member of the media;

- the USAO had complied with Department of Justice policies regarding the arrest of media members; and

- the Assistant U.S. Attorneys would memorialize the answers to these two questions in the Complaint, consistent with their prior practice.

The USAO represented that it had followed its internal guidelines but was unwilling to memorialize that or explain the bases for its determinations. The Court issues this addendum opinion in response to the USAO's break with prior practice, and to ensure that the judicial record accurately reflects: 1) the conversations between the Court and the USAO; and 2) the undersigned's understanding of the steps taken by the Department to comply with 28 C.F.R. § 50.10.

"The Supreme Court has noted that, when it comes to criminal process, the freedoms guaranteed by the First Amendment should be guarded with 'scrupulous exactitude.'" Indeed, on July 19, 2021, Attorney General Merrick Garland strengthened the Department of Justice's policies to protect journalists based on the premise that "a free and independent press is vital to the functioning of our democracy." The Department of Justice's regulations further recognize: "Because the freedom of the press can be no broader than the freedom of members of the news media to investigate and report the news, the Department's policy is intended to provide protection to members of the news media from certain law enforcement tools … that might unreasonably impair newsgathering activities." The regulations therefore forbid seeking an arrest warrant for "a member of the news media for any offense that he or she is suspected of having committed in the course of, or arising out of, newsgathering activities without first providing notice to the Director of the Office of Public Affairs and obtaining the express authorization of the Attorney General." …

The Department of Justice's prior practice in dealing with members of the media informs this Court's decision. In U.S. v. Purse, the USAO requested an arrest warrant for a person who entered the Capitol on January 6, 2021 "wearing a black tactical vest with the words 'PRESS' on his chest and back[] and a black helmet with the words 'PRESS' on either side, and carrying 'a long black pole, with what appear[ed] to be a recording device at the end of the pole." The statement of facts included a footnote asserting that, "as part of this investigation, the affiant could not identify [Purse] as being associated with the press or having possessed press-credentials related to the U.S. Capitol." The Court initially rejected this warrant request because, "there [was] little to indicate that the government ha[d] considered [Department of Justice] policy or the values protected by it." The USAO subsequently submitted a complaint with additional facts which specifically addressed why the government believed that Purse was not a member of the press. Based on this showing, the Court approved the requested arrest warrant.

A recently unsealed application also reveals the USAO's prior willingness to assure this Court that the it had followed the Department of Justice's media guidelines. The USAO stated there, "Prior to seeking this process, the undersigned has consulted with the National Security Division of the U.S. Department of Justice and complied with the requirements of 28 C.F.R. § 50.10 ('Policy Regarding Obtaining Information from, or records of, members of the news media')".

Yet here the government is unwilling to address its compliance with its internal regulations regarding the press. When questioned by the Court, the USAO's representatives respectfully stated that they had followed such guidelines but would not formally state this in their pleadings; nor would they memorialize the reasons underlying their determination that Shroyer was not "a member of the news media" who had committed the instant offenses "in the course of, or arising out of, newsgathering activities." 28 C.F.R. § 50.10(f)(2). The events of January 6th were an attack on the foundation of our democracy. But this does not relieve the Department of Justice from following its own guidelines, written to preserve the very same democracy.

Shroyer's [earlier] January 2020 arrest [for having disrupted a House Judiciary Committee proceeding] gave him clear notice that he could not engage in disruptive and riotous behavior at the Capitol Building and Grounds. Yet beginning on January 5, 2021, Shroyer began urging others to join him in protest at the Capitol Building and Grounds premised on the false claim that the election was "stolen." This conduct continued on January 6, 2021, when Shroyer made additional statements urging on the mob and personally entering the restricted area of the Capitol building in brazen defiance of his [Deferred Prosecution Agreement for the January 2020 arrest]. His stated goal was clear: to stop former Vice President Pence from certifying the election by "tak[ing] the Capitol grounds." Shroyer described his personal role in the riot: "We literally own these streets right now." On January 6th, Shroyer was "aid[ing], conspir[ing] with, plan[ning], or coordinat[ing] riotous actions." …

The undersigned finds there was probable cause to believe Shroyer committed the above-described violations.

As to the question of whether and how the Department of Justice complied with its policies, the court received an unsatisfactory answer. Yet even if a credentialed journalist engaged in the instant conduct, there would be no question of probable cause for arrest.

The Department of Justice appears to believe that it is the sole enforcer of its regulations. That leaves the court to wonder who watches the watchmen.

Shroyer's behavior, as described, indeed sounds criminal; and I should stress that First Amendment precedents don't give the media any special exemption from laws restricting trespass or aiding a riot, or for that matter from searches for evidence of others' crimes (see Zurcher v. Stanford Daily (1978)). The Justice Department's policy is generally not, I think, constitutionally required. Nor do I think there's anything illegal about its choosing not to explain how it's complying with the policy, or even in choosing not to comply with that policy (though the Justice Department is apparently saying that it is complying). Still, I thought that the Magistrate Judge's concerns were interesting, and worth passing along.

Comments

[Bob from Ohio]

"events of January 6th were an attack on the foundation of our democracy"

Or alternatively, and more accurately, a mostly peaceful protest turned riot.

Inflating political protest into an attack on the "foundation of our democracy" is in fact an attack on the foundation of our democracy.

[Rev. Arthur L. Kirkland]

A riot aimed at our Capitol, you bigoted, disaffected, superstition-impaired, no-count clinger.

[Currentsitguy]

Which I find far more acceptable, whether it be Republican, Democrat, or other than what we saw in the streets with the violence and destruction of private property we saw two summers ago.

The Capitol is the most appropriate place for the people, no matter what side of the aisle they are on, to vent and display their anger.

If the events we saw on Jan 6 became frequent and common events it would go a long way toward restoring my faith in the nation.

The people elected who work in that building should always keep in the back of their mind that should they anger those they are charged to represent that they could be drug from the building at a moment's notice into an angry mob. It would go a long way toward keeping them honest.

[Rev. Arthur L. Kirkland]

This is how you wind up a bitter, worthless clinger living in the can't-keep-up backwaters of Venango County (or some other stretch of Pennsyltucky), seething about the modern America shaped by your better and against your bigoted, obsolete wishes.

Don't bother venturing into modern, educated, economically adequate, accomplished America . . . we don't want you around.

[not guilty]

The peaceful transfer of power, which the events of January 6 were designed and intended to disrupt, is indeed foundational to our system of government.

[Bob from Ohio]

There was no "design" or "attempt" to disrupt, it was a protest that got out of hand, like the riots in Minnesota that burned down a whole city block.

[Sarcastr0]

Dude, read any of the charging documents. Or the journalism about the social media trafic.

The invasion of the Capitol to halt their part in the transfer of power was planned long before.

[Bob from Ohio]

It was a leaderless crowd, dude. There was no plot, no plan.

About 5% of those charged are actually charged with violent acts. Just a bunch of glorified trespass charges.

[Sarcastr0]

No real leader is not the same as 'must have been a protest that got out of hand.'

As for your 'just trespass' theory. Again, read the charging documents of one of those 'trespassers.' What they wanted to do is worse than what they managed to do is worse than what the government decided they would charge.

[iowatwo]

Dude, the govt issued charging documents, and the journalism, about the social media traffic are...like from the govt... and media.
Two entities that have not comported them selves with much integrity or honesty over the last decade or longer.

[VinniUSMC]

Dude, read any of the charging documents.

Seriously?! The government said so, must be true. The Jim Crow south would have LOVED you.

[Toranth]

What transfer of power was occurring on January 6th?

[not guilty]

Don't be silly. Counting the electoral votes is part and parcel of the transfer of power from one presidential administration to the next.

But I suspect you know that.

[Rev. Arthur L. Kirkland]

" The Complaint alleges that Shroyer traveled to Washington, D.C., in advance of January 6, 2021, to publicly urge people to stop the certification of the Electoral College vote. The Complaint linked to a video on the Infowars website from a January 5, 2021, rally in which Shroyer "gave an address in Freedom Plaza in Washington D.C., during which he stated: 'Americans are ready to fight. We're not exactly sure what that's going to look like perhaps in a couple of weeks if we can't stop this certification of the fraudulent election … we are the new revolution! We are going to restore and we are going to save the republic!'"In another video posted to the Infowars website on January 5, 2021, Shroyer "called into an Infowars live broadcast and said: 'what I'm afraid of is if we do not get this false certification of Biden stopped this week. I'm afraid of what this means for the rest of the month … Everybody knows election was stolen … are we just going to sit here and become activists for 4 years or are going to actually do something about this … whatever that cause or course of cause may be?'" "

This doesn't sound like a journalist to me.

But I was a professional editor at several reputable publications with a relevant degree and have represented newspapers and broadcasters.

A newbie judge with no apparent experience or interest in journalism might disagree, however, particularly on the strength of an incomplete record.

[TwelveInchPianist]

"This doesn't sound like a journalist to me.

But I was a professional editor at several reputable publications with a relevant degree and have represented newspapers and broadcasters."

Well, you sure don't sound like a journalist to me. But I guess that's why we don't want people making arbitrary decisions about who counts as a journalist based on their viewpoint.

[Bob from Ohio]

Ever look at twitter? Kirkland's rantings sound exactly like most "professional" journalists.

[Rev. Arthur L. Kirkland]

Find any important typographical errors in $19,000 residential deeds in backwater Ohio today? How many hours would you need to drive to reach a down with a legitimate newspaper, a top-level trauma center, or a top-100 university? How many students from your school district have attended Ivy League schools in the most recent decade -- and if any did, what is the chance that student will ever return to Outer Clingerland, Ohio?

You are the depleted human residue that remains in our can't-keep-up backwaters after generations on the wrong side of bright flight, Bob from Ohio. This, and getting stomped in the culture war throughout your desolate life, has made you cranky and irrelevant.

But look at the bright side -- you will eventually be replaced, and thereby improve America!

[TwelveInchPianist]

Did you say at one point that you didn't do twitter?

Why not? You would love it.

[Rev. Arthur L. Kirkland]

I engage in no twittering. I do not miss it, but perhaps there is something to it of which I am not aware.

[Eric VonSalzen]

I watched the events of Jan. 6 on live TV (ABC). Most of what I saw looked like a peaceful, but angry protest. The live videos appeared to have been taken by fixed cameras at three (or possibly four) locations. One showed marchers on (I think) Constitution Avenue on their way to the Capitol; they were peaceful, and there were quite a few groups that appeared to be parents with minor children. Another showed demonstrators milling around outside the Capitol, but with uniformed personnel preventing entry into the building (these images may have been taken from two different locations outside the Capitol; I'm not sure). Finally, there were video images taken from inside the CapitoI that showed demonstrators walking through a public hallway, many carrying flags and signs, and almost all walking between the velvet ropes that are (as I recall -- it's been a long time since I visited the Capitol) intended to guide the tourists.
It was only in the days that followed that I saw on TV videos of violence and disorder, outside and inside the Capitol, which were presumably shot by reporters/videographers on the scene.
I was left with the impression that the experience of anyone involved, whether as a demonstrator or as a protector, seems to have varied a lot depending on when and where.
I know nothing about Mr. Shroyer; I had never heard of him before reading this post. But I am concerned that the Authorities, having decided to call this event an "insurrection", may not be giving thoughtful consideration to whether a particular person involved was (a) a lawful demonstrator, (b) a demonstrator who went too far, or (c) a rioter. The Justice Dept. not following it's own rules is concerning.

[Ed Grinberg]

I am concerned that the Authorities, having decided to call this event an "insurrection", may not be giving thoughtful consideration to whether a particular person involved was (a) a lawful demonstrator, (b) a demonstrator who went too far, or (c) a rioter.

It's pretty obvious that they decided to err on the side of (c).

[Sarcastr0]

So the left also does not much like our criminal justice system, including the federal one. Partially because of entitled nonsense like this.

Seems like there's an opportunity, if the GOP is serious, to get a law going to reform the FBI and DoJ on this front. Hey, they could outflank the Dems on this issue - get AOC on board!

Or they could just complain about how they are so persecuted and try for special pleading.

[Bob from Ohio]

GOP does not have a majority. Pelosi and Schumer wouldn't bring it up for a vote.

I don't think we are interested in protecting journalists with special rights either. Counterproductive to aid your enemies.

[Noscitur a sociis]

The only entitlement is coming from the magistrate judge, who seems to think that it's his prerogative to lecture a separate branch of government for not allowing him to police its internal affairs as aggressively as he wants to, despite recognizing that he has no authority to do so, and that such compliance has no bearing on the questions that the district court hired him to adjudicate.

[Noscitur a sociis]

That leaves the court to wonder who watches the watchmen.

An AUSA's failure to adhere to policy is investigated by the Department of Justice's Office of Professional responsibility. Since Judge Faruqui spent more than 12 years as an AUSA before becoming a magistrate, I am surprised to learn that he didn't know that—or that he was under the impression that he was supposed to be enforcing these policies instead.

[John F. Carr]

The last sentence of 28 CFR 50.10 reads: "This policy is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person."