Amid Plea Discussions, Owen Shroyer Submits a Half-Hearted First Amendment Challenge
I came in just a few minutes late to the Owen Shroyer status hearing, and missed the better part of it, it went that quickly! That said, according to Shroyer lawyer Norm Pattis, things are quite chummy with prosecutors and they expect they might come to some kind of plea deal.
That makes the flimsiness of a motion to dismiss he submitted the other day far more interesting. He’s supposed to be arguing that because he’s a “journalist” who was covering the riot he was cheering, he shouldn’t be prosecuted. Most of his 1A argument, however, would apply to the hundreds of other people charged with trespassing that day, and doesn’t address the non-prosecution agreement that specifically prohibited Shroyer from being a loud asshole at the Capitol, uniquely among the thousands of rioters. Shroyer repeats false claims about trying to rein in the mob that Tim Kelly already rejected. He makes one half-hearted bid to press freedom:
News reporters and broadcasters often put themselves into harm’s way to cover political demonstrations. Robust public discourse requires free and unrestrained media. In New York Times v. Sullivan, 403 U.S. 713, 717 (1971), Justice Black opined
In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government’s power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government.
(Black, J. concurring.)
Yet he provides virtually no evidence that he was reporting.
That’s what makes Shroyer’s declaration, which he could be held to (though it is labeled as a draft), all the more interesting. In addition to claiming that he intended, “in substantial part, to report on my observations to our millions of listeners and viewers worldwide,” and repeating the already rejected claims that he attempted to calm the crowd, he included these details about his expectations of the Former President.
While in Washington D.C. on January 6, I accompanied Mr. Jones to the podium at which President Trump was speaking. It was my understanding that we were to follow Mr. Trump from there to the Capitol.
Mr. Jones and I were accompanied by a security detail comprised of fellow Infowars employees and off-duty police officers. We traveled together as a group, with Mr. Jones and I walking within a perimeter established by our security team.
When Mr. Trump did not appear to lead our group, I followed Mr. Jones and the security detail from the podium traveling in the direction of the Capitol building.
At no point as we walked this route did I see impediments or barriers of any kin [sic] suggestion [sic] that we were not free to enter the grounds.
None of this addresses the general details of his trespass or his specific prohibition on being a loud asshole at the Capitol. Indeed, his claim that he didn’t see any barriers as he “walked this route” “in the direction of the Capitol building” (even assuming it is a factual claim, and the Sedition Hunters say it is not), is largely true only because the march itself was unpermitted.
He’s describing thinking that President Trump was going to lead an unpermitted march to the Capitol, and then leading it himself (following along behind Alex Jones like thousands of others), right down Pennsylvania Avenue which had no barriers because there was no march planned.
This doesn’t help him, even ignoring the presence of Ali Alexander, who is not an Infowars employee.
Whatever else this declaration is (and it’s not the kind of declaration that would win a 1A motion to dismiss), it doesn’t protect Donald Trump.
Meanwhile, the status hearing of the other Infowars employee who was supposed to have a status hearing today, videographer Sam Montoya, was continued so he, too, can continue to discuss a plea deal.
Press trespassing and rioting is just as prohibited as any other kind, basically. “Plenty of hats and plenty of hooks does not an instant journalist make.”
While this is exactly true, one can imagine the DoJ has not nor is planning to charge AP journalist John Manchillo and AP photographer Julio Cortez, who filmed Trump rioters fighting police front on from police point-of-view along the police line and whom Minchillo was the one who was then victimized by Burlew & Byerly, charged with assault in special territorial jurisdiction and acts of physical violence on restricted grounds for engaging Manchillo (himself in the restricted zone).
A key but not only point on this (one assumes besides not rioting) is displaying press credentials, and identifying one as credentialed press which both Minchillo & Cortez maintained.
Again, neither of those persons you mentioned actually rioted, correct? In this case, it could be strongly argued that persons adjudged to be actual journalists and reporters, etc, have not much to fear here. It is those who claim they are journalists when really they were there to foment and participate in the riot itself that are at legal jeopardy.
From the declaration that you quoted: “Mr. Jones and I were accompanied by a security detail comprised of fellow Infowars employees and off-duty police officers.”
Those last four words leaped out to me. Were any members of this “security detail” later found to have engaged in assaulting the officers defending the Capitol building, the VP, various senators and representatives, and their staffers?
I believe that there have been several that have been charged, if that’s what you’re asking.
Had tfg actually kept to his word (hey, look, this is fantasy but work with me) and led this mob down to the Capitol, would that have given any of this actual legal status? I’m not sure how it works with the POTUS, but can he just go wherever he wants in the USA without permission, and authorise anyone else to go with him?
I know tfg acted as if he could literally do whatever he wanted and his sycophants enabled him, but could he have even actually have authorised that march by just setting off on his own two flabby feet?
I mean, it’s ridiculous that any of these people ever believed he could walk a hundred yards without being winded, but if he had?
[Still wouldn’t exculpate them from what they did at the Capitol itself, of course.]
If it waddles like a seditionist…
To paraphrase that great sage and incorruptible public servant, Richard Nixon: “when the president does sedition, that means that it is not illegal.”
And we all know how that worked out for Nixon ;)
I’d think that his security detail should have been aware that there was no permit for a march, and refuse to let him try to waddle even as far as his motorcade.
He never had any intention of trying, SS or no SS. If he really wanted to walk, he could have and would have. Presidents don’t do what their security detail asks all the time.
My question was about if he’d had the actual intention, what would have been the legal implication for those who marched behind him. It doesn’t really matter for the substantive issue, which is the riot and invasion at the Capitol itself, but I just wanted to know what the actual limit on POTUS’s power was in this scenario.
He can’t walk more than a couple of hundred yards. At most. At the G7 in Spain, he had to use a golf cart when all the others walked.
Critical to the legal implications are the role he’d assumed at that time. He was campaigning, not conducting the function of the presidency during his appearance at the rally.
I’m not a lawyer, but it struck me as odd that Shroyer essentially said “we were going to follow Trump, but when he didn’t show up we carried on regardless”. If you genuinely thought that Trump’s presence made the whole thing legal, logically his absence might deter you, or at least cause you to reconsider. Shroyer doesn’t mention any debate about the next course of action, or who made the decision to proceed.
So I’d say it shows something about his state of mind, but whether that matters depends on what he’s been charged with.
On a related note, a judge (maybe Beryl Howell) said something to the effect of the President can’t make illegal acts legal, which I think was part of a response to someone saying “Trump made me do it”. So Trump couldn’t legally march on the Capitol nor authorise other people to march, because he didn’t have a permit and saying “Do it anyway” or “I will make it legal” doesn’t make it legal. His Secret Service detail ought to know what was and wasn’t permitted, or at least be able to find out in short order. In that light (assuming I haven’t got something wrong), Trump’s absence from the march looks like a decision to limit his legal exposure.
Not true, they have no power to force any person on their protection details to do as they “order”, especially the guy who in the end is their boss.
Having worked with the SS during my time in the US Army, I personally know of one situation when a VP over ruled his security detail, and we all had to scramble to make it happen.
Just as VP Pence refused to “get in the car”, and the SS detail had no way to make it happen.
If the former guy had “wanted” to walk down Pennsylvania Avenue, he could have and the SS would have had to scramble. The “want” seemed to be missing, so the SS presidential detail had lots less work that day.
You mean no Constitutionally legal way to make it happen, correct?
While this is exactly true, one can imagine the DoJ has not nor is planning to charge AP journalist John Manchillo and AP photographer Julio Cortez, who filmed Trump rioters fighting police front on from police point-of-view along the police line and whom Minchillo was the one who was then victimized by Burlew & Byerly, charged with assault in special territorial jurisdiction and acts of physical violence on restricted grounds for engaging Manchillo (himself in the restricted zone).
A key but not only point on this (one assumes besides not rioting) is displaying press credentials, and identifying one as credentialed press which both Minchillo & Cortez maintained.
If you put those nice ‘[sic]s’ into the declaration quote, this phrase could have one, as well (after ‘I’):
with Mr. Jones and I walking
Does anybody else think “Ballad of a Thin Man” –something happening but you don’t know what it is, do you Mr. Jones?
Interesting that Norm Pattis is representing Shroyer. Pattis, as you are probably aware, represents Alex Jones and Infowars in the Sandy Hook cases in Connecticut. Pattis loves attention and media and, while he’s had a few landmark wins over the years, more often than not flames out spectacularly, much like he’s doing in the Sandy Hook litigation. Do you have any idea as to whether Pattis is going national with other J6 defendants, or just the Infowars adjacent?
Sandy Hook sure has not gone well for him or Jones….
Yeah, Pattis is a big star locally. He’s the one you call when you make headlines in a bad way. But I think it’s a bit late in his career for him to command a national stage, and I doubt he would choose to compete with the likes of John Eastman and Sydney Powell.
Looks like Mr Shroyer is branching out as a pundit, without any recognition of his previous activities:
“In segment on abortion protests, ABC News features Infowars host on trial for January 6
Owen Shroyer has celebrated anti-abortion violence and previously said that former President Barack Obama ‘basically has a rope destined for his neck’”
https://www.mediamatters.org/abc-world-news-tonight/segment-abortion-protests-abc-news-features-infowars-host-trial-january-6
It gives me a greater level of confidence in the sensitivities of our public press to see such circumspection which, I am sure, they will proffer to any and all, no matter their political affiliation, from now on.
Off topic note: CNN is reporting: “Investigators also have learned about encrypted messages on the app Signal leading up to January 6, in which the Oath Keepers were messaging high-profile, right-wing political organizers, according to four people familiar with its existence. The Justice Department recently provided records of the chat to defense attorneys in the sedition case, some of the people said.”
This sentence was buried in the article: “According to the people familiar with the Signal messages that prosecutors have accessed, [Alex] Jones appeared alongside Roger Stone, a staunch Trump ally and confidant, as well as [Ali] Alexander and members of the Oath Keepers for what was called a “VIP” chat. ”
[note to moderators: I was going to post this as a comment to Rayne’s excellent article about the Senate. Not sure that would be appropriate. I doubt many will see it here.]
If you haven’t had the displeasure already, you can enjoy Shroyer’s discomfort and confusion as he tries to decide in real time (at about the 38 minute mark) if he’s a journalist or performing “journalistic commentary” (or simply a “puppet”- later in the deposition, near the end I think) while being deposed by Houston attorney Bill Ogden here: https://www.youtube.com/watch?v=xSJphsEuJ2g
Ogden said he particularly enjoyed this deposition and asked to be the one to take the deposition as soon as he heard Shroyer was scheduled to be deposed by his firm.
Ogden sometimes ate gummy worms (you can hear him chewing sometimes) and used some longer pauses simply because he wanted to do things to make Shroyer uncomfortable. Another thing Ogden did to “Shroyer the Cuck Destroyer” was to ask questions he knew Shroyer should know the answers to but most likely wouldn’t know- a technique that Shroyer employs to make his “people-on-the-street” interview subjects look stupid.
Before (or maybe during) that portion of the deposition Ogden played a tape of Shroyer doing this exact same thing to others at a political rally. After that portion of the deposition, Ogden pointed out to Shroyer that he’s “just not that informed”- a direct quote that Shroyer used to embarrass people in his own “interviews” at that rally. AND Ogden pointed out that he had been very obviously copying Shroyer’s own disingenuous interview technique— LOL! Shroyer of course did not recognize this while it was happening and after it was explained to him Shroyer replied “tip of the cap to you” (or something similar).
The most painful example of Shroyer “not being informed” was that when asked, he didn’t know the name of the child who was killed at the Sandy Hook shooting and whose parents are suing Shroyer (and Jones, etc) for defamation. This case was filed in something like 2018. For a group that hawked “Sandy Hook is a fake” for so many years and are being sued by some of the parents, that they can’t even be bothered to know the names of a few children killed in the tragic shooting where 20 children died- and a handful of those whose parents are suing them about it- is unfathomably callous, IMHO.
So is Shroyer a “journalist”? He is not sure himself. He mostly leaned “no” himself when deposed but he never seemed very clear on the issue.