The Feds’ Nonexistent Case Against Alleged Sicknick Assailants

The cause of Capitol Police officer Brian Sicknick’s untimely death on January 7 is finally settled, but the prosecution of his alleged attackers rages on.

After months of dishonest accounts about what happened to Sicknick—first that he was bludgeoned to death by “insurrectionists” with a fire extinguisher and then that he died of an allergic reaction to bear spray—the D.C. Medical Examiner’s office confirmed the 42-year-old died of a stroke; the chemical sprayed in his direction during the chaos outside the Capitol on January 6 did not contribute to his death.

In its haste to bolster the new narrative maintaining Sicknick was killed by rioters wielding bear spray—the acting attorney general was in on the lie from the start—the Justice Department charged two men with the chemical attack. George Tanios and Julian Khater were arrested March 14 and charged with several crimes including four counts related to possession and use of a “deadly or dangerous weapon” and for conspiring ahead of time to use the spray against police officers.

They’ve been behind bars ever since. Both were transported to the nation’s capital where they joined dozens of January 6 detainees held in solitary confinement in a D.C. jail.  A judge on Tuesday will consider motions filed by their attorneys to release both defendants as they await trial. (Tanios and Khater, friends since college, are being tried together. They deny all charges.)

“An Assault on Our Nation’s Home”

As I’ve reported for the past few months, federal courts, at the direction of Joe Biden’s Justice Department, are denying bond to nonviolent protesters as their cases continue a slow slog through an intentionally overloaded D.C. judicial system. The presumption of innocence has been suspended for Trump supporters involved in the January 6 protest largely based on a supposed “thoughtcrime” of doubting the legitimacy of the 2020 election.

Before announcing his ruling, a federal magistrate berated Tanios from the bench. “Everyone in our country knows what happened on January 6,” U.S. Magistrate Judge Michael Aloi lectured during a March 22 detention hearing. “We also generally know . . . that they were supporting the president who would not accept that he was defeated in an election. And so we have created this culture, radicalized by hate, and just refusal to really accept the result of a democratic process.”

Aloi also suggested the bear spray killed Brian Sicknick—it was “surreal,” the judge said, to see a video of the “officer who no longer is with us”—and described what happened on January 6 “an assault on our nation’s home.”

He preached on: “I don’t think I have ever seen anything play out in a way that was more dangerous to our community.” Even though the judge admitted Tanios did not spray the chemical, Aloi nonetheless ordered Tanios, a business owner with no criminal record, to remain in jail indefinitely.

But the government’s case against Khater and Tanios is weak if entirely nonexistent. The flimsy evidence in the Tanios-Khater prosecution, as in most of these cases, relies almost solely on various sources of video taken on January 6—and the Justice Department is seeking protective orders to keep the full body of video evidence concealed from defense attorneys.

Dangerous Evidence?

Law enforcement officials have argued in court pleadings that defendants shouldn’t have “unfettered access” to tens of thousands of hours of video evidence because they might pass along the information to those who “wish to attack the Capitol again.”

Instead, according to a recent Politico article, prosecutors are “working to build an archive of video that would permit defendants to peruse relevant clips but sharply restrict their access and permit prosecutors a chance to object if they feel such footage could be misused or present a risk.”

This appears to be the situation for Tanios and Khater. An attorney for Tanios accused the government of presenting only “tiny limited seconds of evidence” and refusing to allow the defense team an opportunity to see the rest. “We see their limited interpretation of videos, and their view of those videos because they are tiny little pieces of them, handpicked by the government to show to the Court.”

The sketchy photographic evidence against Tanios and Khater included in charging documents isn’t the government’s only problem. Law enforcement doesn’t know for certain if they used the spray at all. Under questioning by Tanios’ lawyer last month, FBI Special Agent Riley Palmertree could not confirm that either man pulled the trigger on the bear spray can:

Attorney: Did Khater use the bear spray that day?

Agent: Not that I know of, but that’s for further investigation—the investigation is still going on regarding the bear sprays.

Attorney: OK. So it’s your understanding that Khater used the smaller canister of OC spray with the black handle that was sort of like on a keychain or could be a keychain? 

Agent: That’s according to my investigation, which is still going on.

Attorney: You don’t have any reason to believe that the bear spray was deployed that day at all, do you?

Agent: I have the bear spray cans myself and I haven’t submitted them for analysis, so that’s what I would need to do. That’s a very serious thing that I have to be sure on in a scientific way the best I can.

In a separate filing, Julian Khater’s lawyers argued their client and Tanios were sprayed by others in the crowd, perhaps police officers, and never used the bear spray. The government even admitted in its affidavit that Khater at one point yelled out, “they just sprayed me.” Therefore, it’s a strong possibility the officers, including Sicknick who reportedly told family members he was hit by pepper spray during the protest, were sprayed by something other than the bear repellent.

Abusive Prosecutorial Overreach

Khater’s family is asking the court to release him on a $15 million bond guaranteed by 16 family members. (As one journalist noted, that amount is three times higher than Harvey Weinstein’s bail.) Judge Thomas Hogan will hear the case on Tuesday and then decide whether to keep Khater and Tanios behind bars until their next court date or confine the pair to home detention.

There is no reason to keep these men in jail, let alone in solitary confinement in a D.C. prison. Cherry-picked video evidence does not support the weapon charges against them; the chief investigator confessed no evidence exists to prove the can of spray ever was used or that Khater sprayed it at anyone including police officers. The Justice Department’s refusal to allow access to video evidence raises plenty of red flags.

Neither man has a criminal record. George Tanios and Julian Khater pose no threat to society. Their only crime, as is the case with hundreds of nonviolent Capitol protesters, was supporting Donald Trump and daring to question the validity of the 2020 presidential election—a doubt shared by tens of millions of Americans.

Judge Hogan this week has the chance to do the right thing and send a message to the government that this abusive prosecutorial overreach won’t stand. Let’s hope he does.

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