A lawyer representing one of five Proud Boys members on trial for seditious conspiracy asked a federal judge to throw out the case Thursday, saying that federal prosecutors hid “plainly exculpatory” US Capitol security footage played on Fox News host Tucker Carlson’s show.
Carlson aired selective pieces of footage this week in an attempt to downplay the violence and defend the pro-Trump mob. According to the US Capitol Police, 140 officers from various departments were assaulted on January 6, 2021.
The court filing is the most recent of several requests for a mistrial from attorneys representing the five Proud Boys, who have repeatedly alleged government wrongdoing. All of the previous requests have been denied by the judge.
On Tuesday, prosecutors said that “nearly all” of the Capitol security footage Carlson played was previously available to attorneys representing riot defendants.
Roger Roots, an attorney for New York Proud Boy Dominic Pezzola, wrote that the video Carlson played of the “QAnon Shaman,” Jacob Chansley, proves protesters went into the Senate Chamber on the invitation of US Capitol Police. Roots alleged that prosecutors “withheld” the footage from his client.
“This footage is plainly exculpatory; as it establishes that the Senate chamber was never violently breached, and – in fact – was treated respectfully by January 6 protestors,” Roots wrote. “To the extent protestors entered the chamber, they did so under the supervision of Capitol Police. The Senators on January 6 could have continued proceedings.”
Roots continued, “It was not Pezzola or codefendants who caused the Congress to recess. Congress interrupted its own proceedings.”
The filing does not mention any video that aired of Pezzola himself. According to video shown during a hearing of the House Select Committee investigating the January 6 insurrection, Pezzola smashed one of the first Capitol windows that day. He has pleaded not guilty to all charges.
Roots’ argument is the latest fallout from the footage played on Carlson’s show earlier this week. House Speaker Kevin McCarthy, who granted Carlson exclusive access to the video, has faced blowback from Republican leaders for how Carlson used the footage to peddle new falsehoods about the Capitol riot.
CNN and other media outlets also have requested access to the footage.
In a statement Thursday, the US Attorney’s Office said it “has confidence in the procedures that were created and followed from the outset of this unprecedented case. We also note that we have made available to all defense counsel more than 17 terabytes of evidence, including CCTV footage from the Capitol, related to the events of January 6, 2021. For context, the entire printed contents of the Library of Congress amounts to roughly 10 terabytes of data. We have taken numerous steps to assist defense teams in identifying the information most relevant to their client within this library in order to let them decide how to proceed. After gaining access to evidence related to the events of January 6, roughly 600 defendants, to date, have pled guilty or been found guilty.”
Chansley attorney said he hadn’t seen video
Albert Watkins, the attorney who represented Chansley when he pleaded guilty, told CNN that he had never seen the videos of his client walking with officers in the Capitol.
“The government had a duty to disclose all evidence, especially exculpatory evidence,” Watkins said. “The government’s duty in this regard is not subject to discretion. It is an absolute duty.”
It is not clear, however, whether Chansley could take issue with the new video in court. Chansley pleaded guilty to obstructing an official proceeding in 2021 and was sentenced to 41 months in prison.
During his sentencing hearing, Chansley spoke at length about the guilt he felt for breaking the law and admitted, under oath, actions he took that broke the law inside the Capitol building. Prosecutors say police asked him to leave, and he refused.
His lawyer had argued to the judge he was peaceful during the riot, though Chansley had used a bullhorn to rile up the crowd and left a threatening note to then-Vice President Mike Pence on the Senate dais.
In several filings around the time of Chansley’s plea agreement, the Justice Department said that it was still working to process the “massive volume of data that may be relevant to many defendants” facing January 6 related charges.
Two months after Chansley accepted a plea agreement, prosecutors wrote in a court filing that they were “still collecting and assembling materials from the numerous entities who were involved in the response to the Breach, and we are still investigating – which means the amount of data (phones, devices, legal process, investigative memoranda) is growing.”
Even in the days before Chansley’s sentencing, prosecutors noted in the case that discovery was still ongoing. “Given the scope of the existing investigation and its on-going nature, we expect that we will continue to obtain materials, which we will produce expeditiously,” prosecutors wrote.
This story has been updated with additional details.
CNN’s Evan Perez contributed to this report.