That evidence, they said, includes findings of more than 900 search warrants executed in nearly every state. It also includes more than 15,000 hours of surveillance and body-worn camera footage supplied by some of the 14 federal and local law enforcement agencies that participated in the Capitol response — from the FBI to the Secret Service to the Arlington, Va., police department.
Authorities are also combing through 1,600 electronic devices, conducting hundreds of searches of text messages from multiple providers, and reviewing 210,000 tips and 80,000 witness interviews.
The new filings amount to an effort by the Justice Department — a day after Attorney General Merrick Garland took the helm — to pump the brakes. Garland has described the investigation of the Capitol assault — when a violent mob of Donald Trump supporters, primed by the president’s baseless claim that the 2020 election was stolen, stormed past police lines and delayed Congress’ ceremonial counting of electoral votes — as his top early priority.
Already, about 300 suspects have been charged — and at least another 100 are likely to be added, prosecutors say in the filings. Their alleged crimes range from easily provable trespass cases supported by video evidence to more complicated conspiracy allegations against paramilitary groups such as the Oath Keepers and the Proud Boys. Federal officials have also indicated that graver crimes such as seditious conspiracy are possible.
Garland’s arrival at the Justice Department on Thursday appears to have created some movement. Prosecutors said in court Friday that they anticipate receiving authorization to begin offering plea deals to some riot suspects within two to three weeks.
Federal District Court Judge Trevor McFadden said he didn’t entirely agree with the government’s decision to tag the Capitol attack as a “complex case.”
“I’m not sure that this counts as a complex case. I’m not ready to make that determination right now,” he said. “The complex cases that I‘m used to look very different.”
Still, McFadden called the situation “very unusual” and acknowledged the huge volume of video evidence and other material the government has to organize.
While McFadden said he appreciated the government’s effort and its obligation to turn over potentially relevant evidence to the defense, he also suggested it may be overkill in more minor cases.
“Incredible amounts of evidence here is probably largely irrelevant to the defendants,” the judge said. “At some point, the defendants’ right to a speedy trial may collide with the sprawling nature of evidence collection and disclosure, but I don’t think we’re there right now.”
McFadden ultimately agreed to a 45-day delay in the case of Jennifer Cudd, an alleged rioter from Texas who made headlines when she received permission to travel to Mexico while awaiting trial. But he said he viewed the case against Cudd as “relatively straightforward.”
“There are probably more difficult, certainly more serious, allegations relating to other people,” he said.
McFadden appeared to agree with a characterization by Cudd’s attorney, conservative firebrand Marina Medvin, that Capitol riot cases shouldn’t be viewed as part of a monolithic investigation or a singular conspiracy but rather as a collection of individual cases.
However, down the hall, D.C. District Court Chief Judge Beryl Howell readily agreed with the government’s characterization of the Capitol attack prosecution as highly complicated. “The complexity of this case is enormous,” she said, noting that newly uncovered evidence continues to uncover new connections between rioters charged in separate cases.
Prosecutors said that to organize the evidence and make it available to suspects and their defense attorneys “will take time” and likely require the use of outside vendors to craft a system all sides agree on. And it will take even more time to deploy that system and upload evidence once it is constructed.
That’s why prosecutors say they need a 60-day delay in both simple and complex cases, such as the nine-defendant Oath Keepers conspiracy case, before proceeding to trial.
“The failure to grant such a continuance in this proceeding would be likely to make a continuation of this proceeding impossible, or result in a miscarriage of justice,” they wrote.
At a hearing Thursday afternoon in the broadest conspiracy case the government has charged, one focused on members of a militia group known as the Oath Keepers, a prosecutor said that case — currently involving nine defendants — could grow to involve 15 or more.
“The government does anticipate that additional defendants will be added to the conspiracy at some point…at least one, but potentially up to 5 or 6 or a few more,” Assistant U.S. Attorney Jeffrey Nestler said Thursday afternoon.
A nine-defendant trial would be extraordinarily unusual and challenging for the court under pre-pandemic circumstances. Only the court’s large ceremonial courtroom could conceivably host a trial of that size. A 15-defendant trial, with the attendant number of defense lawyers, witnesses, jurors and alternates, could be impossible to accommodate.
“We may have to split it up into groups,” Judge Amit Mehta said. He also indicated that some defendants’ cases may not make it to trial. Indeed, a large majority of federal cases are resolved through plea bargains. Some charged in the case might also choose to testify against others.
Mehta also noted that even though the court is technically reopening to trials next week after a year-long halt due to the pandemic, cases that rolled in before the virus hit have already filled many of the limited slots that are available in the coming months.
“The trial calendar is pretty booked throughout the summer. We’ll just have to wait and see,” Mehta said.
