Magistrate Judge Expresses Concerns About DOJ’s Not Explaining How It’s Complying with Policy Related to Getting Information from News Media

In Magistrate Zia Faruqui’s opinion U.S. v. Shroyer (D.D.C.This was decided August and discussed in some media outlets. However, it has just been posted to Westlaw

A warrant was issued by the Court on August 19, 2021 for Jonathon Owen Shroyer (a/k/a Jonathan Owen Shroyer), “a Texas talk-show host who is associated with ( Recent updates by the Department of Justice to its policy on media investigations have been made. They recognize the critical importance of free speech in a democratic society. The Court reviewed whether the Department of Justice had adhered to 28 C.F.R. § 50.10 (“Policy regarding obtaining information from, or records of, members of the news media”). The Department declined to answer the question. This addendum opinion is issued by the Court to confirm that the record correctly reflects the following: 1) conversations between Court and Department of Justice; 2) Department’s departure from its previous practice of verifying its compliance with these regulations.

{The attached letter was sent by the Department of Justice in response to the Addendum Order’s draft. The letter misses what is needed. It is true that the Department of Justice has the legal right to make these rules as it pleases. This makes the Department of Justice’s recent silence all the more concerning. In the past, such information was not disclosed by the Department of Justice. Furthermore, the core question was not HowAlthough they adhered to the regulations, If they did.} …

The U.S. Attorney’s Office filed a criminal complaint and statement of facts against Shroyer, on August 19, 2021. According to the Complaint, Shroyer visited Washington, D.C., prior to January 6, 2021 to urge citizens to oppose the certification of the Electoral College votes. A video of Shroyer giving an address at Freedom Plaza Washington D.C. on January 5th, 2021 is linked in the Complaint. In it, Shroyer stated that “Americans will fight. We’re not exactly sure what that’s going to look like perhaps in a couple of weeks if we can’t stop this certification of the fraudulent election … we are the new revolution! We’re going to rebuild and save the republic.Shroyer also posted a video to Infowars’ website, January 5, 2021. He said that he was afraid of what would happen if the false Biden certification is not stopped by Infowars this week. I’m afraid of what this means for the rest of the month … Everybody knows election was stolen … are we just going to sit here and become activists for 4 years or are going to actually do something about this … whatever that cause or course of cause may be?'”

Shroyer is mentioned in the Complaint in promotional material distributed by Infowars. It featured Shroyer along with other people in front Capitol building, urging listeners and supporters to fight for Trump on January 6, 2020. Shroyer was captured marching to the U.S. Capitol via the Ellipse on January 6, 2021 just before the mob attacked the Capitol. Shroyer is seen in one video “marching along with other individuals and leading a bunch of people on a ‘1776’!” Shroyer was seen “marching with other individuals, leading a crowd of people in a ‘1776!’ In the same video: [Shroyer]Can be heard saying to the crowd that “today, we march for Capitol” because, on January 6, 2021 (historically), we must let Mike Pence and our Congressmen know, they stole election. We know it was stolen and will not accept it!”

The videos were further reviewed by law enforcement and revealed that Shroyer was in the restricted area within the Capitol building. Shroyer, in fact, was standing “over the crowd on West Capitol side by the inauguration stage.” Shroyer later called in to an Infowars broadcast on Capitol grounds on January 6, 2021 and said that he was only on one side of Capitol. We can’t see both sides but this side has probably 100,000 people. They’ve taken the Capitol grounds, they’ve surrounded the building itself, they’re on the actual building structure…. They literally control these streets now.” …

USAO stated in its August 19, 2021 Complaint that Shroyer had violated the 18 U.S.C. §§ 1752(a)(1)–(2), which make it a crime to (1) knowingly enter or remain in any restricted building or grounds without lawful authority to do so, and (2) knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engage in disorderly or disruptive conduct in, or within such proximity to, any restricted building or grounds when, or so that, such conduct, in fact, impedes or disrupts the orderly conduct of Government business or official functions; or attempts or conspires to do so. For purposes of § 1752, a “restricted building” includes a posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service, including the Vice President, is or will be temporarily visiting, or any building or grounds so restricted in conjunction with an event designated as a special event of national significance.

Further, the USAO submitted probable cause for believing that Shroyer had violated 40 U.S.C. §§ 5104(e)(2)(D)–(E), which makes it a crime to willfully and knowingly (D) utter loud, threatening, or abusive language, or engage in disorderly or disruptive conduct, at any place in the Grounds or in any of the Capitol Buildings with the intent to impede, disrupt, or disturb the orderly conduct of a session of Congress or either House of Congress, or the orderly conduct in that building of a hearing before, or any deliberations of, a committee of Congress or either House of Congress; (E) obstruct, or impede passage through or within, the Grounds or any of the Capitol Buildings….

The Complaint was discussed by the undersigned in a phone conference on August 19, 2021. The undersigned wanted to know if:

Shroyer was considered a member of media by the Department of Justice

The USAO had followed Department of Justice’s policies concerning the detention of journalists;

– The Assistant U.S. These two questions would be answered by the Assistant U.S. Attorneys, in accordance to their past practice.

Although the USAO claimed that it had followed internal guidelines, they were unable to explain why or memorialize those. In response to USAO’s departure from its prior practice, the Court issued this addendum opinion to make sure that the Court’s record accurately records: 1) the conversation between Court and USAO and 2) the understanding by the undersigned of steps taken to conform to 28 C.F.R. § 50.10.

“The Supreme Court observed that when it comes down to criminal procedure, freedoms granted by the First Amendment must be maintained with’scrupulous precision’.” The Department of Justice strengthened its policies for protecting journalists on July 19, 2021 by Attorney General Merrick Garland. It was founded on the principle that “a free press and an independent press are vital to the operation of democracy.” The Department of Justice’s regulations further recognize: “Because the freedom of the press can be no broader than the freedom of members of the news media to investigate and report the news, the Department’s policy is intended to provide protection to members of the news media from certain law enforcement tools … that might unreasonably impair newsgathering activities.” Therefore, it is forbidden to obtain an arrest warrant against a “member of the news media” for any offense they are suspected of having done in the course of or arising under newsgathering activities. …

This Court relies on the Department of Justice’s past practice when dealing with journalists. You can find more information here U.S. v. PurseUSAO asked for an arrest warrant in the matter of a man who entered Capitol building on January 6, 2021, “wearing a tactical vest that had the words PRESS on its chest and back.”[]And a black helmet with the words ‘PRESS’ on one side. Also, a pole of long length black with what appears to be an inscription.[ed]to have a recording device attached at the pole’s ends.” A footnote was added to the statement of facts stating that “a recording device at the pole’s end” [Purse]As having been associated with the media or possessing press-credentials related the U.S. Capitol.” This warrant application was initially denied by the Court because “there were no other options.” [was]Little evidence exists to suggest that the government is incompetent[d] considered [Department of Justice]” Further facts were submitted by the USAO, which specifically explained why Purse was believed to be illegal. It is notA member of media. The Court granted the warrant of arrest based on these facts.

Unsealed applications reveal that USAO had previously promised to this Court it would follow the Department of Justice’s media guidelines. USAO indicated that “Prior seeking this process the undersigned has consulted U.S. Department of Justice’s National Security Division and met the requirements of 28 C.F.R. § 50.10 (‘Policy Regarding Obtaining Information from, or records of, members of the news media’)”.

The government refuses to acknowledge its compliance with internal rules regarding press. The USAO representatives acknowledged that they followed these guidelines, but they did not make it clear in their pleadings. They also refused to give the Court the reason why they decided that Shroyer wasn’t “a member the news media” and had not committed the immediate offenses “in or arising from newsgathering activities”. 28 C.F.R. § 50.10(f)(2). The January 6th attacks were a serious threat to the foundations of democracy. The Department of Justice is not exempted from its rules, which were written in order to maintain the exact same democracy.

Shroyer’s [earlier]January 2020: Arrest [for having disrupted a House Judiciary Committee proceeding]Shroyer was given notice by the Capitol Building that he couldn’t engage in any disruptive or riotous behaviour on Grounds. Shroyer started to urge others to protest the Capitol Building, Grounds and the fraudulent claim of the “stolen election” on January 5th 2021. Shroyer did not stop there. On January 6, 2021, he continued to make further statements to the mob. He also personally entered the Capitol building’s restricted areas in brazen defiance. [Deferred Prosecution Agreement for the January 2020 arrest]. His goal was simple: To stop Vice President Pence’s “tak” certification of the election.[ing]”The Capitol Grounds.” Shroyer said that his role was to “literally own” these streets. Shroyer was “aid.”[ing]Conspire[ing]Plan[ning]Or coordinat[ing]Riotous acts …

According to the undersigned, there is probable cause for Shroyer’s alleged violations.

The court was not satisfied with the answer to the question of compliance of the Department of Justice with its policies. Even if the journalist was credentialed, probable cause would not be established for his arrest.

It seems that the Department of Justice believes it is solely responsible for enforcing its regulations. The court is left to question who keeps watch over the watchmen.

Shroyer’s behaviour, as it is described, sounds very criminal. I also need to stress that First Amendment precedents do not give media any exemption from laws restricting or aiding in riots, nor from searches for evidence about other’s crimes (see Zurcher v. Stanford Daily (1978).). The Justice Department policy does not seem to be constitutionally mandated. It is not illegal for it to choose not to disclose how it is complying or to refuse to comply (although the Justice Department seems to be claiming that it is). The concerns of the Magistrate Judge were still interesting to me and I wanted to share them.