A D.C. District Court judge overseeing numerous Capitol protest cases today accused the Justice Department of repeatedly falsifying the location of Vice President-elect Kamala Harris during the afternoon of January 6, 2021.
Judge Trevor McFadden, a Trump appointee, openly doubted the validity of trespassing charges against Nicholas Rodean, indicted last March on several counts for his participation in the protest on Capitol Hill.
Rodean, like hundreds of Americans ensnared in the Biden regime’s abusive investigation into the four-hour disturbance, has been charged with three misdemeanors based on the Justice Department’s claim that the U.S. Capitol was “restricted” due to the presence of Secret Service protectees—Harris and Vice President Mike Pence—when protesters entered the building. As I wrote here last week, prosecutors have included the allegation about Harris’ whereabouts in criminal complaints and formal indictments, which means the Justice Department also presented it as evidence to a grand jury.
But Harris was not in the building that day. News reports confirm Harris was at the headquarters of the Democratic National Committee, just east of the Capitol building, one of two locations where law enforcement located alleged “pipe bombs” right before the first breach occured. The Justice Department quietly changed the language in superseding indictments for many January 6 defendants, but apparently did not do so in Rodean’s case.
In a blistering order filed today, McFadden told prosecutors that “the government has a big problem,” noting that Rodean’s indictment still contained the Justice Department’s original claims about Harris. “The superseding indictment says that then Vice President-elect Harris was at the Capitol when Rodean entered it. She was not,” McFadden wrote. “News outlets reported this mere days after January 6.”
Even worse for the Justice Department, McFadden accused prosecutors of deceiving a grand jury. “Yet here, over a year after first charging Rodean—and nearly a year after misleading the grand jury about the whereabouts of the Vice President-elect, the Government has still not explained or remedied its mistake. The Government compounds this error by repeatedly referring to the presence of the Vice President-elect in the Capitol in its motion in limine,” which is a motion that asks the judge what to allow and not allow during trial.
The Justice Department filed that motion, containing the falsehood about Harris, just two days ago.
“This all suggests a certain lack of attention and care in the prosecution of this case, undermining any confidence the Court can have in the Government’s representations,” McFadden wrote.
A clearly-agitated McFadden also denied the Justice Department’s request to limit the cross-examination of Secret Service agents as to the location of Pence that afternoon. Prosecutors insist that revealing the exact location of the vice president at the time could compromise national security; the government keeps changing its account of Pence’s whereabouts, too. In one case, prosecutors suggested the building was off-limits because Pence returned to the building that night, not because he remained in the building the entire day.
“Because of the misleading charges the Government has brought against Rodean, the Court will not allow Secret Service witnesses to testify generally about the presence of protected individuals. Section 1752(a) (the misdemeanor statute) requires the presence of an individual under Secret Service protection. If the Government wishes to continue to pursue this misdemeanor charge, it must be prepared to fully prove it.”
Whether McFadden’s colleagues will follow suit is unclear. Beryl Howell, the chief judge of the D.C. District Court, became aware of the falsehood during a hearing in November. No judge has dismissed the “restricted area” misdemeanors; the first trial that will address Pence’s location that day begins on February 28.