Of the more than 725 Americans arrested so far for various crimes related to the Capitol protest on January 6, 2021, nearly every defendant faces the same two misdemeanor charges: “entering and remaining in a restricted building or grounds” and “disorderly conduct in a restricted building or grounds.”
The basis for the offenses is not, as the American people repeatedly have been told, that the building was closed to the public that day. After all, hundreds of people were allowed inside as Capitol police stood by; no signage or official announcements alerted the public that the building was off-limits.
Instead, the Justice Department has argued that the presence of both Vice President Michael Pence and incoming Vice President Kamala Harris rendered entry into the Capitol on January 6 a federal crime under 18 U.S. Code section 1752. In every charging document, the government relies on section 1752 to define a “restricted building” as the location of the “President or other person protected by the Secret Service,” which would have included Pence and Harris.
For example, the initial indictment for Florida resident Howard Adams twice claimed that “the Vice President and Vice President-elect were temporarily visiting” the building that afternoon, which is why Adams was charged in May with two criminal counts under section 1752.
But a superseding indictment issued by prosecutors in December made a major correction to Adams’ case: the new filing omitted the term “Vice President-elect.” Why? Because Kamala Harris was not in the Capitol when Adams or any protester entered the building on January 6.
Politico recently revealed the Justice Department’s false allegation after a prosecutor had to inform Beryl Howell, the chief judge of the D.C. District Court handling every Capitol breach case, during a sentencing hearing that her claim Harris needed to evacuate the Capitol building on January 6 was untrue. “Assistant U.S. Attorney Jamie Carter chimed in to say that the government had ‘recently learned’ that Harris was not actually present when the Capitol was breached,” Politico reported in November. (It’s unlikely Howell took a break from berating Capitol trespassers to reprimand the government for repeatedly misleading the court about Harris’ whereabouts on that January 6.)
Updated indictments in many cases reflect the subtle but significant change.
So, why did it take so long for the Justice Department to fess up? After all, Harris has publicly admitted that she wasn’t at the Capitol on the afternoon of January 6, 2021. “It’s unclear why DOJ included the erroneous information in the first place and continued to do so for months,” Politico reporters Josh Gerstein, Kyle Cheney, and Christopher Cadelago wrote. “Published reports as early as mid-January, including interviews that Harris gave as she prepared to make history as the first female vice president, indicated she was not present in the Capitol during the insurrection (sic).”
But Kamala Harris’ actual location on January 6 is even more explosive, so to speak. Politico reported in a separate article last month that the then-senator and incoming vice president was at the headquarters of the Democratic National Committee at the same time an alleged pipe bomb was discovered outside the building on January 6. A timeline produced by Capitol Police, obtained by Politico, confirmed that Harris was at the DNC offices in Washington and had to be evacuated around 1:15 p.m. when the device was discovered by law enforcement.
Officials with the Capitol police, including former chief Steven Sund during his congressional testimony, never disclosed that alarming fact, which makes the unresolved crime of the January 6 pipe bombs all the more astonishing. (Another alleged pipe bomb was found near the Republican National Committee headquarters right before 1 p.m. Both buildings are just east of the Capitol.)
Whoever set the alleged explosive devices not only endangered the lives of nearby lawmakers and the public but the life of a sitting U.S. senator and incoming vice president. One would assume, given the urgent security threat the pipe bombs posed that day, law enforcement would be a little more vigilant in tracking down the still-unidentified perpetrator or perpetrators. That doesn’t seem to be the case.
Despite the Justice Department’s recent confession, numerous existing indictments still include the inaccurate claim; D.C. judges, including Chief Judge Howell, seem unbothered by the fact federal court documents—and, more importantly, evidence presented to a grand jury—include an entirely false allegation about the events of January 6.
It now appears that the Justice Department also fibbed about the whereabouts of Mike Pence. For over a year, the government has stated in every criminal complaint that Pence stayed in the building the entire day. “Vice President Pence remained in the United States Capitol from the time he was evacuated from the Senate Chamber until the sessions resumed.” (Pence was evacuated at 2:20 p.m.; the joint session reconvened at 8:00 p.m.) That claim has been included in government motions seeking pretrial detention for dozens of January 6 defendants.
But evidence that Pence remained in the building for nearly six hours is murky at best—and the Justice Department is changing its story as the first jury trials get underway.
Couy Griffin, the Cowboys for Trump leader charged with both section 1752 misdemeanors, wants proof Pence was in the Capitol; Griffin’s trial is set for March 21. His lawyer asked the court to compel production of pictures taken by a White House photographer that clearly contradict the government’s allegations, prompting the Justice Department to once again backtrack. Now, prosecutors want to argue that entry was a crime because Pence was coming back to the Capitol.
“18 U.S.C. 1752(a)(1) and (2) criminalizes a person entering a restricted area ‘of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting.’” [Original emphasis.] “18 U.S.C. 1752 does not require the Secret Service protectee to be present on the grounds or in the building where the restricted area has been established at the time of an illegal entry into the restricted area. Therefore, the Vice President’s presence in an underground parking garage or tunnel does not exculpate the Defendant with respect to the charged conduct,” Janani Iyengar, an assistant U.S. attorney, wrote on January 18.
But of course it does—not only does it exonerate Griffin, who never entered the building, but hundreds of Americans charged under the same premise.
Further, the Justice Department insists it does not have the photographs, which were obtained by ABC News correspondent Jonathan Karl. “The photographs requested by the Defendant from the official White House photographer are not in the government’s possession, therefore, they are not considered Brady [material] and the Defendant cannot move to compel their production,” Iyengar wrote to the court.
And that’s not the only way the Justice Department is attempting to conceal Pence’s exact location for nearly six hours on January 6. Prosecutors also have asked the court to strictly limit the cross-examination of Secret Service witnesses and prohibit defense attorneys from asking agents about “the location within the Capitol or its grounds to which the Vice President and his family, or their motorcade, were taken once the riot began on January 6, 2021.”
Any public disclosures about Pence’s exact location, prosecutors argue, would jeopardize national security. In another major goal post shift, prosecutors say the burden of proof for the government only is to show that the defendant entered “building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting.”
A central question remains: Was Pence in the Capitol building, as the Justice Department has repeatedly claimed, or not? Is it yet another fabrication intended to exaggerate what happened?
January 6 is a tissue of myths, cover-ups, manufactured hysteria, and outright lies. As I predicted in my book, January 6: How Democrats Used the Capitol Protest to Launch a War on Terror Against the Political Right, the truth gradually will be revealed as trials get underway this year. Exposing the Justice Department’s intentional falsehoods about Kamala Harris and Mike Pence is just the start.