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How One CCTV Camera Was Rendered Ineffective Over Two Hours on January 6

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This is a screen cap from the first CCTV video successfully released by a January 6 defendant.

It shows the Tunnel as it appeared at 2:53 on January 6.

In June, accused assault defendant John Anderson’s attorney, Marina Medvin, argued that Anderson needed the video to show — and argue publicly — that, contrary to showing an older man lunge to the front of violent mob, the video instead showed a man suffering from the effects of tear gas and moving up towards a line of officers to ask for help.

The government’s evidence, instead, shows a man approaching police to seek medcial [sic] attention after being chemically prayed by a member of the crowd and after being subjected to additional chemical spray released into the crowd by law enforcement. The video sought for release, and being blocked by the government, establishes Mr. Anderson’s defense.

[snip]

Furthermore, the defense should be free to utilize this highly exculpatory short video to defend Mr. Anderson just as the government uses their discretion to publicize videos and screenshots to accuse this defendant, and every other, of very serious crimes. And, Mr. Anderson should be free to utilize CCTV video publicly just as the government has utilized CCTV video publicly to benefit their position in other prosecutions. See discussion infra. The defense should not need to explain how or why we need this evidence when the exculpatory nature of the evidence is clear on its face. The subjection of this 30-second CCTV clip to a Protective Order prejudices the defendant immensely. The government’s position on preventing the release of a 30-second recording is unreasonable and fails to meet the burden that is on the government to prevent release.

The government argued against that release, describing that unnamed people were using the aftermath of the January 6 attack to gather non-public information about the interior of the Capitol to identify vulnerabilities.

The USCP’s concern with release of the footage is based on an awareness of efforts made by individuals, whether participants in the Capitol riots or not, to gather information about the interior of the U.S. Capitol which is generally not publicly available. The USCP is concerned that release of the footage without protection, especially to defendants who have already shown a desire to interfere with the democratic process, will result in the release of information regarding the vulnerabilities and security weaknesses of the U.S. Capitol which could be used in a future attack.

After weeks of litigation, Chief Judge Beryl Howell ordered that the “Highly Sensitive” designation on the video be lifted, freeing Medvin to share the video publicly.

Medvin will never use this video at trial. Anderson is one of the January 6 defendants who passed away since he was charged. Still, the release of that video marked the first step in the subsequent release of far more video of which Capitol Police had initially tried to restrict the widespread release.

This is a screen shot of a video seemingly taken from the same (or an adjacent) camera around 4:20PM on January 6.

The screen cap appeared in a filing opposing the release of James McGrew. McGrew is accused of “position[ing a] pole [handed to him by another rioter] over his head and launch[ing] the pole into the tunnel” at a line of police officers. While some substance got splattered onto the lens of the camera in the ensuing 87 minutes, the camera still proved useful in identifying participants in the hours-long struggle that it filmed.

The video was released just weeks ago, after Beryl Howell ruled against McGrew’s bail motion on November 2.

This is a screen cap from the same camera taken 32 minutes later.

The same splatters that had made the video less useful at 4:20, made the video almost useless at at 5:02PM, the moment the sun set on January 6, as artificial lights turned on, rendering the splatters more opaque.

The screen cap appears in the arrest affidavit for Josiah Kenyon, whom the FBI claims can be seen in these videos, beating cops with a table leg with nails exposed.

The affidavit reveals that the FBI first got a tip on January 9 in response to photos of Kenyon released in some of the earliest Be On the Lookout photos released. By April 6, the FBI had obtained positive ID for Kenyon based off that wanted poster from two family members of Kenyon.

And yet it wasn’t until last week that he was arrested, on charges of assault and damaging a $41,315 Capitol window that make Kenyon a good candidate for a terrorism enhancement if he is ever convicted.

The affidavit makes clear that in the eight months since the FBI first identified Kenyon, they’ve been tracking his movements and spending from when he was in DC, perhaps to see if he had any accomplices. For example, the FBI pulled Metro surveillance video showing Kenyon entering the L’Enfant Metro station at 6PM, less than an hour after he was allegedly beating cops in the Tunnel and literally the moment that Muriel Bowser’s curfew went into effect on January 6. Further Metro surveillance video shows him getting off the Metro in Franconia-Springfield at 6:48PM.

Still, it’s hard to believe the process of tracking his movements on January 6 took eight months.

What may have taken eight months, however, was the replacement of the CCTV cameras in the Tunnel. The release of this screen cap, after all, shows how over the course of several hours on January 6 the rioters made the camera — a camera surveilling the Tunnel through which Joe Biden would walk, two weeks later, to be sworn in as President — almost useless.

The release of these videos not only make clear the assaults captured by the cameras on the day of the insurrection. They also show how to render them useless.

That may be one of the reasons supporters of the insurrection are demanding all the video be released.

Marina Medvin’s Client Signs a Plea with the Potential of a Terrorism Enhancement

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Marina Medvin is the sweet spot of January 6 lawyers. She’s a legit lawyer, doing particularly good work trying to challenge the asymmetrical access defendants get to security video of the attack. She clearly serves the interests of her clients rather than grifting or focusing more on scoring political points, as some other January 6 defense attorneys appear to do. But she’s also a right wing activist in her own right.

As such, she spends a great deal of time calling people she doesn’t like “terrorists.”

She uses debunked claims about (foreign) terrorists to try to sow fear about immigration.

She spends a great deal of time demanding that the 9/11 attackers be called terrorists.

She calls the evacuation of Afghans who helped the US fight terrorism the importation of terrorists.

She labels Joe Biden’s effort to craft a positive outcome out of Donald Trump’s capitulation to the Taliban as negotiating with terrorists.

She holds protestors accountable for those they affiliate with who call for violence.

She even complains when those held as — and those guarding — terrorists get treated humanely.

Yesterday, with the benefit of Medvin’s able counsel, her client Jenny Louise Cudd pled guilty under a plea agreement that permits the government to ask for a terrorism enhancement under U.S.S.G. § 3A1.4 at sentencing.

To be sure, I agree with Medvin’s assessment yesterday that it is unlikely the government will actually push for this enhancement with Cudd (and I think it even more unlikely that Judge Trevor McFadden would side with such a government request). This appears to be a standard part of any January 6 plea agreement involving sentencing calculations but no cooperation agreement; one thing cooperators are getting — especially those in militia conspiracy cases — is an assurance they won’t been deemed terrorists at sentencing.

Still, Cudd won’t be sentenced until March, and the government may have a far more complete story to tell about the attempted revolution that Cudd applauded by then, a story that will likely incorporate some of the facts to which Cudd admitted under oath yesterday. You never know what DOJ will do or Judge McFadden might find plausible by then.

I raise the terrorism enhancement language in Cudd’s plea agreement not because I think she’ll be treated as one come sentencing (thus far, I think Scott Fairlamb is at greatest risk of that, because his statement of offense admitted both to using violence and to his intent to intimidate those certifying the vote). Rather, I raise it to show that even a right wing activist like Medvin agrees with my reading of the language in these plea agreements. The government is reserving the right to treat these defendants, even someone who pled down to a trespassing misdemeanor like Cudd, as terrorists at sentencing. To be clear: Medvin doesn’t think this will work legally nor does she think her client is implicated in the violence of those with whom she chose to affiliate on January 6, but that is what she described the language effectively means in Cudd’s plea hearing.

Such terrorism enhancements are how domestic terrorists get labeled as terrorists. Because domestic terrorist groups like the Proud Boys or Oath Keepers aren’t labeled as (foreign) terrorist groups by the State Department, affiliation with or abetment of those groups is not per se illegal (as it might be under material support statutes for foreign terrorist organizations). It’s not until sentencing, then, that the government can argue and a judge might agree that the specific crime a person committed involved acts dangerous to human life, and (in the case of January 6) an attempt to intimidate or coerce the policy of government. If the judge does agree, a terrorist enhancement could expose the defendant to a much longer sentence as a result, a guidelines range of 121 to 151 months for someone with no criminal history.

This is a detail that has gone almost entirely unreported elsewhere: that DOJ is building in an ability to treat these defendants as terrorists when it comes to sentencing, sentencing that may be five months in the future.

Mind you, since this would be domestic terrorism, the government could not just wildly label someone as a terrorist for attending a protest at which others present espouse violence, as Medvin has done of Muslims. They’d have to lay out a specific intent on the part of the defendant to threaten force to coerce some political outcome. But if they do so with these January 6 defendants, then they may be legally branded as terrorists for their actions on January 6.