Judging Freedom - Jan 6th Detainees

Episode Date: June 10, 2022

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Hi, everyone. Judge Andrew Napolitano here for Judging Freedom. Today is Friday, June 10, 2022. It's about 2.30 in the afternoon here on the east coast of the United States. A lot of you have been emailing Judging Freedom asking for an explanation about the circumstances under which the 700 or 800 people that were arrested from the events of January 6, 2021 at the Capitol were in fact charged, arrested, and kept in confinement. So I'll give you a little bit of arrest 101 as to exactly what probably happened and what needed to happen. So I made a statement that there were people who were arrested without charge. By that, I meant they were arrested but had not been indicted. In the federal system, you can't be

prosecuted without an indictment. That requires the government to gather evidence and present it to a grand jury. Now, grand juries invariably do what the government wants them to do. There's a famous line from the former chief judge of the Court of Appeals of the state of New York, which goes, a grand jury will invite a ham sandwich if the prosecutor asks it to, and that's almost literally true. But by requiring the grand jury, there's a record of the evidence that was presented to it, and that record goes to defense counsel, so defense counsel knows what evidence the government has. Sometimes the government will present evidence to a grand jury that it obtained illegally, and when counsel sees that, counsel goes to a court and says, you've got to throw the indictment out.

The indictment's invalid because this stuff that they got, they committed a crime in order to get it. And if the judge believes that the Constitution means what it says, she or he will invalidate the indictment. There's a number of other reasons for the grand jury as a protector. There are some exceptions to this. One of the exceptions is something called an information. Now, in looking at all the hundreds and hundreds of people that have been arrested from and after January 6th, I note that some were charged by an information rather than indictment. What's an information? Well, an indictment is a piece of

paper signed by the foreperson of the grand jury. An information is a piece of paper signed by the prosecutor and the lawyer for the defendant in which the defendant waives, gives up his right to require a grand jury indictment, agrees to the charges against him, effectively agrees to plead guilty, and is waiting for sentencing. That short-circuits the need to go to a grand jury. Why would you do that? Well, the government will sometimes recommend a lower sentence if you'll do that, because you save them the time of gathering the evidence and presenting it to a grand jury, and you can also get out of jail a little bit quicker. Because if you don't have roots in the community, and this is what I was really upset about, and if you have a prior conviction, they're not going to let you out of jail until they present this evidence to

a grand jury. Now, they're supposed to do that very quickly, but it could take months. So when I said there are people detained without charge, I meant there are people detained without an indictment. Now, what precedes an indictment? Well, when these people are arrested, the arresting authority, the FBI, can't just bring them to a District of Columbia or a Northern Virginia jail without a piece of paper. The jailer won't accept them without a piece of paper. The piece of paper is the original criminal charge sworn to under oath by whoever the arresting authority is. Capitol Hill Police, FBI, Metropolitan Police, which is what the regular DC cops are called. That document is sworn to. It obviously precedes the indictment and precedes the information because it's literally sworn to

within minutes of the arrest. But it's necessary that somebody swear under oath to what the defendant did or the jailer will not accept the defendant. So you can't just pick somebody up and say, put them in jail. There has to be a valid legal reason for that reduced to writing. And often that reason is very different from the final charges, because often the person signing that criminal complaint is not the person who witnessed the event. The witness may be another cop, perhaps a cop that was injured. And on his way to the hospital, he's going to say, well, that guy hit me in the head with a bottle, so lock him up and charge him with assault. Maybe he pointed to the wrong person.

There's all kinds of things that can go wrong. The problem with January 6th is there are these two different versions. One is it was a political demonstration by those who wanted to express their anger at the election of Joe Biden and their sincere belief that Joe was not truly elected and that Donald Trump was. I don't believe that for a minute, that Joe Biden was not elected and that Donald Trump was, but I have a lot of friends whom I respect who do believe it, and I respect that belief. And apparently a lot of people on January 6th believed that. The other version is that this was a well-organized planned attempt to either intimidate Vice President Pence into rejecting the electoral votes of seven states, or to prevent Congress from meeting

so that it couldn't count the electoral votes. If the latter was a very, very serious crime, if the president was behind this and it was the latter, the effort to prevent the counting of the votes, felony by everybody involved, because it's a plan and a plot to prevent the passage of power in the federal government. It's interference with a duty that the Congress has under the Constitution. All those things are felonies. On the other hand, if it's something that just got carried away, if it wasn't planned or plotted, then the people that destroyed property are responsible for this interference and not everybody else. Last question.

Are any of these people political prisoners? Yes and no. Okay. Yes, because the DOJ hates the politics of these defendants, so it will prosecute them with zeal. Yes, because it will overcharge them, charge them with 10 or 12 crimes to scare the daylights out of them to get them to plead guilty to one or two. Yes, because they wouldn't be prosecuted if they were liberal Democrats. No, because these people really did commit crimes, low-level crimes, trespassing on a Capitol building, walking in when the police wave you in. People who did that shouldn't have been

charged with anything. But the people who hurt the police, the people who destroyed the property, the people who scared the daylights out of the vice president by saying that we're going to hang him, the people who literally disrupted the Congress from meeting, they're not political prisoners. They may be people that the Democrats who run the DOJ hate, but they're not political prisoners. So I've just given you a criminal procedure 101. It takes about two months in the first year of law school, and you got it in eight minutes. I hope it makes sense. I hope I answered your questions. Judge Napolitano, judging freedom.