Telling the Story of January 6 to the Judges Who Know It Best: The Two FBI Lawsuits
There are a number of outlets tracking every legal challenge to Trump and Elon Musk’s power grabs. For example, JustSecurity has this litigation tracker, including the multiple suits (one, two, three, four, five, six, seven) that attempt to stop Elon’s invasion. Some may well succeed in enjoining Elon’s actions — but they’ll lead to a confrontation over who will enforce the orders.
Two lawsuits filed yesterday by FBI agents may be better vehicles both legally and in generating stories that might lead to pushback from Republicans. The first represents nine Jane and John Doe FBI personnel, fashions itself as a class action, and demands a jury trial; it has been assigned to Biden appointee Jia Cobb. It makes claims under the First Amendment, Fifth Amendment (and Fifth Amendment Privacy), and Privacy Act. It provides these details about how much the government spends to obtain the expertise of FBI agents.
13. FBI agents are chosen through a highly selective process, and are carefully screened for aptitude and trustworthiness.
14. FBI agents go through more than four months of intensive training at the FBI academy before beginning their duties, and attend numerous training sessions throughout their careers to adapt to new technologies and emerging threats.
15. Many FBI agents are multi-lingual and routinely interface with intelligence agencies from allied nations.
16. The training FBI agents receive is comprehensive, and in some instances, extremely expensive.
17. On information and belief, Plaintiffs assert that each agent of the FBI receives more than 3 million dollars-worth of training in a twenty (20) year career.
18. FBI agents also develop specific expertise from their assignments and field duties, much of which cannot be replicated solely by training.
The second represents seven Jane and John Doe FBI personnel, and the FBI Agent’s Association, which represents most active duty Agents; it has been assigned to the Trump appointee who presided over the Proud Boy leaders’ trial, Tim Kelly. Mark Zaid, a highly experienced lawyer in this field, is leading this suit. [Update: This case has been reassigned to Judge Cobb.]
This FBIAA suit makes two claims under the Privacy Act, a First Amendment, two Due Process claims, and this mandamus claim.
64. The provisions of 28 U.S.C. § 1361 provide a statutory basis for jurisdiction in cases seeking relief in the nature of mandamus against federal officers, employees, and agencies, and they provide for an independent cause of action in the absence of any other available remedies.
65. Defendants’ actions, as set forth above, constitute unlawful, intimidating, and threatening behavior towards Plaintiffs in response to Plaintiffs’ lawful actions of executing lawful search and arrest warrants and participating in lawful investigations of crimes committed by January 6 perpetrators.
66. Defendants do not have discretion to redefine the truth of January 6, 2021. Nor do Defendants have any discretion to recast the lawful actions taken by the FBI and the previous leaders within the Department of Justice as illegal, let alone any discretion to retaliate and disclose names.
67. Defendants have no discretion when it comes to ensuring the safety of the American people from extremist violence, let alone the safety of their own employees.
68. If no other remedy is available through which the unlawful termination orders may be rescinded, then Plaintiffs are entitled to relief in the nature of mandamus compelling Defendants to recognize Plaintiff to rescind the unlawful termination orders.
Both tell stories about Trump’s personal involvement in January 6 and describe a fear that lists of FBI Agents who worked on the January 6 cases will be used by those they investigated for retribution. The second also cites multiple cases of Jan6ers — including Enrique Tarrio, over whose prosecution Judge Kelly presided — promising retribution. [Update: As noted, this case has been reassigned to Judge Cobb.]
The second suit — the FBIAA one — substantiates its description of the events of January 6 far better, relying on opinions written by the judges who’ll preside over this case, as in these two citations to the DC Circuit opinion in the January 6 Committee’s lawsuit to access Archives documents.
13. The events of January 6, 2021, and the activities leading up to the violence that ensued on the U.S. Capitol on that day, have been well documented by courts in this circuit. Specifically, “[o]n January 6, 2021, a mob professing support for then-President Trump violently attacked the United States Capitol in an effort to prevent a Joint Session of Congress from certifying the electoral college votes designating Joseph R. Biden the 46th President of the United States. The rampage left multiple people dead, injured more than 140 people, and inflicted millions of dollars in damage to the Capitol. Then-Vice President Pence, Senators, and Representatives were all forced to halt their constitutional duties and flee the House and Senate chambers for safety.” Trump v. Thompson, 20 F.4th 10, at 15-16 (D.C. Cir. 2021).
[snip]
19. “The events of January 6, 2021 marked the most significant assault on the Capitol since the War of 1812. The building was desecrated, blood was shed, and several individuals lost their lives. Approximately 140 law enforcement officers were injured, and one officer who had been attacked died the next day. In the aftermath, workers labored to sweep up broken glass, wipe away blood, and clean feces off the walls. Portions of the building’s historic architecture were damaged or destroyed.” Thompson, 20 F.4th at 19.
That’s not the only way the FBIAA suit foregrounds the way judges have approved of the January 6 investigation. It also describes how everything happened with the involvement of judges and much of the legal process for that went through DC.
21. Investigative efforts were centralized out of the District of Columbia federal district (“DDC”). Functionally, this meant that FBI agents swore out arrest warrant affidavits in front of DDC magistrate judges. Upon receipt and review of the sworn affidavit, DDC magistrate judges approved the FBI’s arrest warrant applications and provided a signed, lawful arrest warrant to the arresting FBI agent or FBI task force officer (local law enforcement detailed to the FBI) for execution.
22. In some instances, individuals were arrested pursuant to a grand jury indictment. In these cases, FBI agents testified in front of a federal grand jury under Fed. R. Crim P. 6. If the grand jury found probable cause based on the evidence presented, a supervising court would then issue a lawful arrest warrant for execution
23. Many of the perpetrators of the January 6 riots fled Washington, D.C., immediately after the carnage. Because of this, the FBI had to coordinate efforts across the country in order to amass evidence. This frequently entailed applying for search warrants under Fed. R. Crim. P. 41 in the district where the evidence was to be located. Again, the FBI applied for warrants via sworn affidavits presented to neutral and detached magistrate judges. In the context of search warrants for physical property (e.g., phones, clothes, stolen property), these lawful warrants were issued by a multitude of magistrate judges outside of DDC.
Every DC Judge has affirmed the import of these cases and the danger of the January 6 attack (though some have questioned the prosecution of so many trespassers). They’re all likely facing the same threats that these FBI agents are.
And they are being asked to preside over suits that pit the FBI agents who carried out this investigation against a DOJ led by Trump’s defense attorneys (including Pam Bondi, who was confirmed with the help of John Fetterman but no other Democrats yesterday).
The Mandamus requested by the FBIAA suit is a big ask — the Privacy Act violations in both suits are more likely to work. But the judges in question are likely to agree that, “Defendants do not have discretion to redefine the truth of January 6, 2021.”
According to Ken Dilanian, the FBI did turn over a list of the people involved in the January 6 investigation, though provided employee ID numbers in lieu of names.
Over four years ago, and a blanket pardon. Move on. But this retribution. Is it real or is it a smokescreen Trump is creating to obscure news of other things happening now? Going after FBI members seems an unpopular step. The FBI investigated. Handed the cases to DOJ. Most discretion rested with DOJ. The FBI seemed to find things and without bias or culling, agents passed info to DOJ. Nobody can credibly deny an incursion happened. Who actually did what is nulled now by a blanket pardon or commutation. Reporting should say it’s improper and a wasteful effort, it’s old, agents showed no bias in doing the job, and then look to details of firings and Musk amok. Reviving yesterday’s new and retreading it must mean Musk is finding no real government error for Trump to pitch. Are Trump and his people ultimately intending to claim it was false flag? That’s a remote possibility, but one nonetheless.
For four years, they’ve been lusting to “Investigate the Investigators!” for engaging in a witch hunt. Trump & Co. are not going to let a pesky little thing like facts get in the way.
Another reason for investigating the investigators is to make agents reluctant to investigate any future wrongdoing that might reflect badly on the Trump administration.
‘False flag’ claims have been floated before (ANTIFA and FBI informants, etc.) so that option is already in play.
This, by which I mean the Trump / Miller / Musk Presidency’s actions to date, all look entirely deliberate to me. A gamed-out scenario along the following lines:
1 – Break the law through executive order. Flood the zone. Move fast and break things. Overwhelm the media’s and the public’s and the Courts’ ability to respond.
2 – Obfuscate, lie, act in bad faith, game the system at every turn to maintain a pretense that you are not defying Court orders.
3 – Defy Court orders openly in selected areas. Prepare the public for an environment where compliance with Court orders is optional.
4 – Openly defy Court orders across the board, because the Courts are wrong, the President knows best, and the President is Supreme ruler.
5 – If Congress investigates, obstruct any congressional inquiries, pardon any wrong-doing and nullify any wobbly votes in the majority party through any means necessary. Congress has never impeached and removed an executive branch official, and this Congress certainly won’t be the first.
6 – Celebrate the victory of the unitary executive over the other branches.
7 – Profit.
I’ve been feeling the same way. Trump signs an executive order and it becomes law. It takes him all of five seconds and costs one Sharpie. Fighting that EO takes months, if not years, of litigation and costs untold dollars and man-hours. He’s pumping those out by the dozens.
I liken it to this Sunday’s Super Bowl where your team takes the field with eleven guys and the other team has 50, all of them receiver eligible. You can’t cover them all.
you forgot step one: Steal Underpants
I’d rather have the Underpants Gnomes in charge of the government than these guys.
Re
“According to Ken Dilanian, the FBI did turn over a list of the people involved in the January 6 investigation, though provided employee ID numbers in lieu of names.”
Here is link to Mueller She Wrote screenshot of memo from Driscoll explaining to staff the actions he took re using staff identifiers and job descriptions but not other personal identification information
https://bsky.app/profile/muellershewrote.bsky.social/post/3lhf6rdyt3c2n
That statement by Dilanian is a distinction without a difference. Since Musk’s commissar Marko Elez (among others) has been granted admin rights over at the finance office (they write the actual checks) there is no expectation that there won’t be an effort to match names to numbers.
The second suit contained a cite, interesting to those of us who try to document the crazy but are unable to keep up with it by tracking one by one: CREW, Trump has spread conspiracy theories about January 6th more than 175 times on Truth Social (6 Jun 2024). The author gives readers a bit of a dive into the various theories Trump has offered as to why the January 6th Capitol attack was not his fault.
Norm Eisen is listed as co-counsel, and probably was the source of the cite.
Hopefully these judges who worked faithfully for so many hours on these cases will continue to make their voices heard in their opinions/orders, telling the TRUTH about what happened that day.
Does anyone know if the Criminals-in-Charge now have access to
identifying information about grand jurors on these cases?
Also, what will happen WHEN, not if the Federal Government of the United States declines to follow rulings of the Judicial Branch?
And… can The ROBERTS COURTesan Majority Faction
FINALLY be made to feel ANY responsibility for this MESS?
Come on. A court that does what this one did will feel no responsibility for anything.
That assumes that Alito, et al think it is a mess instead of their desired outcome to remove what they consider to be DFHs.
SCOTUS justices aren’t stupid as a rule, but some of them are amoral and think they know better what is for our own good.
“including the multiple suits (one, two, three, four, five, six, seven) that attempt to stop Elon’s invasion. ”
As a non-expert, I’m sure this is a naive question, but why aren’t there immediate injunctions to prevent further invasions of this type if they are truly illegal and/or unconstitutional?
I have been wondering the same. Why aren’t these goons being stopped?
I suspect that none of the judges want to give an order they know won’t be obeyed, so they’re taking their time and making sure they’ve got either the means of compelling obedience or that they can get the principals into their courtrooms and hit them immediately for contempt, thus jailing them, if necessary. They may also be talking about combining the cases.
Stopped by whom? The Executive is the one authorizing the laws being broken. These lawsuits will languish for years, then any favorable verdicts will be appealed to the same SCOTUS that granted the Executive complete immunity. There are no checks. There are no balances. This is the GOP’s ultimate dream of a government that will not govern.
I have a question: Are they (they is, I concede, nebulous but, for example, current and future employees of DOJ and FBI) so sure that they have co-opted the reigns of power that they will always in control of government or are they just relying on the Democrats not prosecuting them in return for their actions while “simply doing their job” should they win the next election (again, if there is one)?
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I have to believe that the USAID and anybody else operating under any kind of agreement with the US govt will a) have grounds to sue the DOGE idiots for tortious interference of a contract, and b) the DOGE guys are not protected by governmental immunity. Sue them and seize personal assets. Don’t worry about the Judge enforcing an injunction yet.