Judging Freedom - The FBI's possible role in the Jan. 6 Capitol riot

Episode Date: January 18, 2022

James Bovard, Libertarian author & columnist, joins Judge Napolitano to discuss the FBI's possible role in the Jan. 6 Capitol clash. They discuss the FBI's long history of abuses, lies & cover-ups.See Privacy Policy at https://art19.com/privacy and California Privacy Notice at https://art19.com/privacy#do-not-sell-my-info.

Hello there, everyone. Judge Napolitano here. Welcome to Judging Freedom, my very happy podcast where I get to talk to friends and colleagues, usually people that I admire and people who agree with me, which is the case today. Sometimes people who want to challenge my thinking and your thinking. Today, a champion of civil liberties, a man whose work I have read for many, many years, and who is almost a one-man wrecking ball of government excesses, or at least exposing government excesses, the great James Bovard. James, welcome to Judging Freedom. What a pleasure to have you on.

Hey, Judge Knapp. Thanks for having me on, and thanks for all the hell-raising which you're doing and making the hot for a lot of bad guys. Well, there are a lot of bad guys out there, and some of them wear badges and carry guns and have the authority of the government behind them. You and I have written and spoken extensively about the FBI. I want to talk to you today about the FBI, the FBI's involvement in two very public events, each of which is having a different outcome. The first was the riots in Oregon in 2020 and the defacing of the federal courthouse. And the second was whatever you want to call it on January 6th at the Capitol building.

In Oregon, we know there were FBI undercover agents. And now we're beginning to find out that on January 6th, there were either undercover FBI agents or FBI sources that were communicating directly with FBI agents or both. So let's talk big picture. To me, it is the fault of the Supreme Court for allowing the government to engage in entrapment, allowing the feds to encourage people to commit crimes that once the crime is committed, they can decide who amongst the committers of the crime they're going to pursue an arrest and from whom they're going to extract information and produce further crime.

Agree or disagree? I agree. Going back to the 1970s, Chief Justice Rehnquist basically defined entrapment out of existence. And so it doesn't matter how much outrageous behavior there is by undercover federal agents or federal informants. You know, it doesn't matter as long as someone broke the law. There was a case I wrote about in Lost Rights about a woman who had taken in an ex-friend of her husband, and he was constantly hassling her to buy drugs, and the two of them had a sexual affair, the prosecutors knew about. But the judge said, well, you know, that wasn't undue enticement. And if you're basically, if you're screwing your targets, well, that's just all part of being a government informant. I mean, it's an appalling standard. And it's had a much bigger effect on these, a lot of federal cases and what people realize.

And it's sad that most of the media doesn't realize, you know, prior to the 1970s, entrapment was understood. That was a huge issue in a lot of court cases during Prohibition. You had federal G-men out there doing all kinds of crap to get people to violate the law. Juries were thrown out on a routine basis. But I think what happens now is that you get the judges give jury instructions that they say, well, that doesn't really matter of the government to entrap people, to taunt them, to tease them, to solicit them, even to coerce them into committing crime, has been magnified to the point where I think, and I'll let you elaborate on this with respect to both cases in Oregon and in DC, the FBI, in order to curry favor with the mobs that had been infiltrated, committed crimes itself. FBI agents did the same thing

that people were arrested for. So the question is, did the government foment what happened in Oregon in 2020, where nobody was charged with sedition? And did the government foment what happened on January 6th, 2021, where 11 people have just been charged with sedition? And did the government make its decisions about who to charge and what to charge them with based on politics? No, I can't imagine that would be a factor. No, I mean, there are so many levels of nonsense here. I mean, it's going back to the definition of entrapment. The FBI preauthorizes its informants to commit more than 5,000 crimes per year. And that's only the ones that they admit. And how many more crimes are kind of wink, wink, oh, well, you know,

we didn't hear about that. We'll just kind of, folks will use a burner phone for that if they're in contact with their sources. So yeah, I mean, didn't Merrick Garland say that the attacks on the federal courthouse didn't count as terrorism because they happened at night or some kind of wacky rationale like that? It's interesting to see how this is playing out in January 6th. The New York Times had a piece a couple months ago that said there was at least one, if not more, federal informants in that crowd urging people to go in. 14,000 hours of videotape from inside the Capitol. We've seen almost none of it. Something which strikes me as really appalling is you've got federal prosecutors arm-twisting these defendants to plead guilty. At the same time, the feds are withholding a vast amount of potentially exculpatory evidence. How does that work?

Well, I mean, that's the trick that the federal prosecutors have been using for generations in the Rehnquist court. It hasn't been addressed by the Roberts court, but the Rehnquist court, the Berger court allowed it to happen. The government can lie, cheat, deceive, coerce, theoretically do everything short of commit a crime in the manner in which they negotiate with defendants. They can grossly overcharge them so that they'll say things like, well, look, you go before a jury, you're exposed to 25 years. If you plead guilty tomorrow, you're going to be out in six or nine months. The guilty plea, of course, is so attractive, but the loss of the opportunity to probe the government's case and find out exactly what the government's been doing.

So here's a couple of examples. And that New York Times piece was terrific. The New York Times piece was so good. If you read between the lines, what the Times revealed about this undercover, I don't think he was an agent. I think he was an informant who was texting in real time his FBI handler who did nothing with respect to stopping the evidence. He was only interested in who he could arrest. When the New York Times revealed that, the federal prosecutors who were prosecuting people for these crimes committed, destruction of property, obstruction of justice, interference

with a governmental function. We'll talk about sedition later, but the sedition charges hadn't come down yet. The federal prosecutors themselves didn't know about this informant who was feeding the FBI because the FBI hadn't told them. That's issue number one. Issue number two, again, the New York Times reports that 200 people were arrested for the riots left wing inspired outside the federal courthouse in Portland, Oregon in October 2020. And miraculously, within two days, 100 of those charges had been dropped. Now, how could that be? Were those 100 either FBI agents or FBI informants? Or was the FBI so involved in encouraging, fomenting, and committing

the crimes, they didn't keep adequate enough notes about who they were arresting, so they couldn't prosecute these people. There's a lot of slipperiness out there on the federal definition of terrorism. And I wrote about this, I think last year, talking about how there were more arrests for terrorism, domestic terrorism in Oregon in 2020 than any place else in the country. I assume that some of those people were probably overcharged. But I think once the Biden people came in, there's been a lot of charges that would have been upheld under Trump, would have been dropped. But it's a very vague. There was a lady, maybe Maxine Bernhardt, a reporter for The Oregonian, that walked through some of the specific things that people were charged with terrorism for. And it was like, okay, okay, it wasn't quite as bad as blowing

your nose on a federal property. But on the flip side, on January 6th, you got a bunch of folks who have been charged with marching in the Capitol. And this is, I've heard it's a misdemeanor, I've heard elsewhere it's a felony. But I mean, this is part of what they're trying to legally hang people with. You were marching in the Capitol. I mean, hell, I've marched lots of places, you know. I hope I don't have to start dodging federal charges on that. Well, they use the marching, Jim, as an indication that you were part of some sort of a command structure group, whether you want to call it militia or not. Because the indictment against the 11 Oath Keepers for Sedition, which is basically a thought crime, specifically says they were marching in two groups.

They were marching in one group of five and one group of six. The government thinks it can persuade a jury that a group of five or a group of six really could have violently overthrown the government of the United States of America. That's basically what this sedition charge is. And they must have had, the indictment is so filled with detail of communication among these 11 people between the Saturday after election day, when much of the public and all of the media concluded that Biden had won, and January 6th, that's a two-month period in there. The detailed information of what these Oath Keepers was doing is so exacting, the FBI must have had an undercover agent or an undercover informant working for it. So that's another problem for the government. What did the feds know and when did they know it?

And if they knew there was going to be violence, violence that caused massive property damage and death, why did they let it go on? That's a great question. I hope we can find out the answer. I mean, there were so many warnings. I mean, you know, it was almost impossible not to see the warnings that there was going to be a lot of people intend to to raise a ruckus, perhaps violently, on January 6th. There are a lot of strange things. Strange might be the wrong word. A lot of peculiar reactions and non-reactions by the Capitol.

You know, for the day of the January 6th, the Capitol Police had fewer than 200 officers there at the Capitol, in the Capitol, waiting for stuff. It was like they were getting ready for a visit from the future farmers of America instead of thousands of folks that were riled up. And another thing in the terrorism stuff, something that really caught me early on, the acting chief of the Capitol Police talked about how there were thousands or 10,000 terrorists there that day. So any Trump supporter in that zip code was labeled a terrorist by the Capitol Police chief. And this is nuts. This is nuts. But this is typical how the rhetoric took off on this. And it was almost amusing to see on January 6th how hard Biden and Kamala Harris were working to pump air into this. Because,

yeah, there were some guys who violently attacked police yeah throw the book at them but the vast majority of folks there in January 6th did nothing violent and you know they might have been in the wrong place that they didn't have authorization to stand you know stand on this line of the property but but... Well, that's the point that we're both trying to make. The motivation here is politics. The crowd that the Biden DOJ, the Merrick Garland DOJ is going after were, for the most part, conservative and libertarian Republicans. The crowd that nobody went after, and they threw half the charges out in Oregon were for the most part socialists and progressives and anarchists from the left. The government should have more controls on it.

There should be more standards about who it can prosecute because it can't make these prosecutorial decisions based on politics. And yet it does. In fact, some federal judges have been saying to Merrick Garland, actually to the line prosecutors, the people that are actually in the courtrooms, you're accusing these people of all kinds of crimes, high-end crimes of terror, and yet you're accepting guilty pleas to a slap on the wrist. Are you using me? Are you using the court just as a means to process through these 750 cases? Are these people that you're calling terrorists not terrorists because you're not prosecuting anybody for terrorist acts? Yeah. Chief Judge of the D.C. Federal Courts, Beryl Howell, said the federal prosecutors were acting almost schizophrenic with the talk about terrorism and all this stuff.

And then, OK, you know, 30 days, you know, just, you know, slap on the wrist, whatever. But it's interesting. There's some of the judges, I think, have got a visceral animosity to the defendants. And others are kind of saying, you know, folks, this is kind of going off the rail. And Merrick Garland's prosecutors have decided to, you know, pull in some wild-eyed claws from Sarbanes-Oxley in 2002 to try to hang their cases on. And I think it's going to blow up in their faces. I don't know where this is going to go. I mean, there's only one member of the court now, Justice Neil Gorsuch, with libertarian leanings with respect to the proper role of government and law enforcement. I would think that if another entrapment case came before the Supreme Court, they would

follow the Rehnquist opinion, which is horrific and dreadful. And you talked about it a few minutes ago. So I see this getting worse rather than better. I see the Supreme Court loosening the reins on law enforcement and law enforcement cutting all the corners it can. The only way this can stop is if there's a cultural change in our attitude about the relationship between law enforcement and ordinary Americans. Or if some of these cases come to trial and very sophisticated defense counsel expose the government for the things that it has done, jurors may start to engage in jury nullification. Yeah, technically, what this defendant did is wrong. And technically, what the defendant did is criminal. But the

government's behavior was worse. And therefore, we're going to find him not guilty. There are cases upholding that. Well, cases upholding it. If the jury acquits, there's no appeal. There's nothing the government can do. They're out of luck. Yeah, I mean, I think there'd be a lot more jury nullification if the feds had not arranged to have almost all these cases heard in Washington, D.C., where folks, it's, you know, simply looking at the comments on Washington Post articles on this. I mean, it's a lynch mob out there. And there's, you know, there are people, there are Washington Post readers, I assume at least many, if not most of them live in the D.C. area. We're very disappointed that the government didn't kill all the demonstrators that day.

So it's like, you know, folks, take your medicine. What are you working on now, my friend? Oh, I'm, you know, throwing a bunch of rocks at the government and chasing this rabbit and chasing that rabbit and just trying to get some laughs. All right. You're one of the more courageous people I know. And I love reading your work and I love chatting with you. And I'm sure that my viewers and listeners will as well. The great James Bovard, a fearless champion for personal liberty and exposing government

excess. James, it's a pleasure. Thanks very much for joining us. And thank you for listening. Sure. Thank you for listening to another segment of Judging Freedom.