Why Won’t the Government Release Officer Fanone’s Bodycam Video?

At least one federal judge handling several Capitol protest criminal cases is paying attention to House Speaker Nancy Pelosi’s show trial about the events of January 6.

Judge Thomas Hogan, 83, who has served on the D.C. District Court for nearly 40 years, referred to public testimony given last week by four law enforcement officers while he scolded a husband and wife over their involvement in the protest. 

“[H]e begins by talking about the violence, and makes clear he listened to the police officers who testified before Congress last week about their experience, and notes the recent suicide of [a Metropolitan Police Department] officer,” Zoe Tillman, a reporter for BuzzFeed, live-tweeted during the couple’s sentencing hearing on Wednesday.

Set aside for a moment how the inflammatory and unsubstantiated accounts by those officers will taint an already highly biased jury pool in Washington, D.C. when trials begin next year; it’s clear the January 6 select committee already is influencing court proceedings. Judge Hogan, and presumably others, will take witness testimony at face value and use it as proof that Capitol defendants, even the nonviolent ones, contributed to “violence” that day.

Which is why, as we have argued repeatedly at American Greatness, the government and U.S. Capitol Police should agree to release more than 14,000 hours of surveillance video captured by security cameras on January 6. If the four-hour melee indeed compares to the worst terrorist attacks against Americans, and ranks among the worst days in U.S. history, the public deserves to see what happened, minute-by-minute, inside and outside the building.

But it’s not just Capitol complex security video that the government is trying to conceal from the public. In a recent filing, Joe Biden’s Justice Department argued against the release of footage recorded by officer Michael Fanone’s bodycam on January 6. The D.C. Metropolitan Police narcotics officer was one of the four cops who testified last week. 

Fanone, 40, said he was not supposed to be on Capitol Hill that day but that he put on an official, unworn uniform—including a body camera—for the first time in 10 years to help assist his colleagues control the chaos. Fanone also testified he was afraid he would be killed that day—either shot with his own gun or torn limb from limb by Trump fanatics. In one outburst, Fanone called insurrection deniers in Congress “disgraceful” and claimed they were “betraying their oath of office.”

Fanone is working hard to become a household name. He’s been on a part-pity, part-publicity tour for the past seven months, detailing his harrowing experience and stalking Republican members of Congress. He’s become a regular on CNN; following his testimony last Tuesday, Fanone headed to the CNN studio for an interview with Don Lemon. The two ended the segment with an embrace and expressions of love for each other.

In a front-cover profile in this week’s Time magazine, Fanone recalled how he phoned the network from his emergency room hospital bed on January 6. “Fanone looked up CNN, called the number that came up on his phone and told the woman who answered that Mike Fanone with the metropolitan police department needed to talk right away to that jerk on the air who was insulting the good name of every police officer,” Molly Ball reported. “The following week, at his urging, the department set up a round of interviews with the Washington Post and major TV networks. Fanone, one of several officers authorized to speak to the press, was the star of every segment.”

Four months later, Ball writes, Fanone was in a D.C. ritzy wine bar with other cops looking “to meet girls”—Fanone is divorced and living with his mother—when they asked the bartender to turn on CNN. Lemon was airing exclusive footage from Fanone’s body-worn camera. “The bar fell silent as the body-cam footage played,” Fanone told Ball. “And suddenly, for the first time since that day, Fanone was sobbing uncontrollably, shoulders heaving as his buddies put their arms around him.”

The Justice Department continues to release cherry-picked video clips from its massive trove of digital evidence to support the White House’s narrative that January 6 was a deadly insurrection executed by domestic terrorists. The government continues to blow through discovery deadlines in court; during a hearing last Friday, a prosecutor admitted full discovery obligations in the Capitol breach probe won’t be fulfilled until early 2022 at the earliest.

Three men have been charged with assaulting Officer Fanone; they’ve been held behind bars since March, denied bail after the Justice Department successfully sought pre-trial detention for Thomas Sibick, Albuquerque Head, and Kyle Young. As is the case in most motions for pre-trial detention, the government used a brief selective video clip from Fanone’s body camera in the case against his attackers.

But a group of 16 news organizations called the Press Coalition wants to see all of Fanone’s body camera footage from January 6. Media companies including the Associated Press, Wall Street Journal, and NBC News are suing for access to video evidence in several cases. In June, the group asked Judge Amy Berman Jackson to release “Officer Michael Fanone’s body-worn camera, and . . . surveillance footage for the Lower West Terrace of the United States Capitol.”

The Justice Department objected to the request. “The government opposes the release of [the] Videos . . . as the government has never submitted those videos to the Court, the videos have never been the subject of any judicial decision, and thus they are not a ‘judicial record’ to which any public right of access might attach,” prosecutors wrote on June 25. “Furthermore, [the Capitol surveillance] Video . . . is designated as ‘Highly Confidential’ under the parties’ Protective Order in this case.” (As I explained here, the Justice Department has deemed all USCP surveillance video as “highly sensitive” government material.)

The reason Fanone’s bodycam video is not court material is that prosecutors, shrewdly, used screenshots of the videos rather than links to the actual evidence in court filings. “Entering a screenshot as an exhibit does not make the entire video from which the screenshot was taken an exhibit.”

Judge Jackson, who earlier this week unleashed an anti-Trump tirade from the bench in another Capitol case, unsurprisingly sided with Biden’s Justice Department. “The Court further finds that [the] Videos are not ‘judicial records’ subject to public access because they were not provided to the court,” Jackson wrote in a minute order posted July 6. “Accordingly, the Application . . . is hereby DENIED.”

So the government uses a little trick to prevent video from being formally entered into the judicial record, and federal judges play along.

What are they hiding?

The Press Coalition, in addition to other news outlets, should keep pushing. Fanone has made himself into a media celebrity while gaslighting the public; worse yet, his unproven accusations now contaminate potential jurors and federal judges.

Joe Biden also is using the police as a way to influence the ongoing investigation and also taint the jury pool and federal bench. Biden signed legislation Thursday afternoon to award the Congressional Gold Medal to the U.S. Capitol Police and D.C. Metro police for defending the country from “thousands of violent insurrectionists.” Biden also referred to hundreds of Americans now facing criminal charges related to January 6 as “terrorists.”

In his congressional testimony last week, Fanone said he hopes the American people will be able to see all of his bodycam footage at some point. I’m sure the American people wholeheartedly agree.

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