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--:-- Host (John Bickley): The release of never-before-seen surveillance footage from the January 6th Capitol riots by Fox News host Tucker Carlson has sparked intense blowback from lawmakers and legacy media outlets alike. It's also raised a series of questions from legal experts and criticism from lawyers who've represented some of the January 6th defendants. In this episode of Morning Wire, we talk with journalist Molly Hemingway and an attorney representing several January 6th defendants about the serious implications of the release of the footage and the response to that release.
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--:-- Host (John Bickley): Joining us first to discuss the implications and fallout from the airing of the January 6th footage is Federalist Senior Editor Molly Hemingway. Hey, Molly. First, we have to start with what the vast majority of Americans generally agree on. Those who willfully, knowingly broke laws, particularly those engaged in violence at the Capitol, should face all the appropriate consequences. But what many Americans feel increasingly uneasy about is whether January 6th and those involved in it have been handled fairly by the government and the media.
--:-- Molly Hemingway: I think there are two issues in play. One is that shortly before the January 6th protest and riot, you had a months-long siege of American cities that involved unspeakable violence. You know, attacks on the White House, the Mark O. Hatfield Federal Courthouse in Portland, Oregon, the burning of a large police precinct to the ground in Minneapolis, arson and violence in downtowns throughout the country. You had autonomous zones in Seattle where people were murdered and raped. And you had basically no repercussions for this or almost no repercussions, no widespread outcry, even though it was horrific for America to live through that.
--:-- Molly Hemingway: And then you have the January 6th protest and riot, which got obviously out of control, involved violence. And you had the largest investigation in DOJ history to make sure that anyone who was within any distance of the Capitol could be prosecuted to the full extent of the law. And so the context of the national situation is important. And then also just understanding that, you know, this was a protest attended by hundreds of thousands of people. A small percentage of them even entered the Capitol. Smaller percentage of those entered into the Capitol violently, whereas there's video footage showing some people were just allowed in.
--:-- Molly Hemingway: And so being told that this is the worst moment in American history, definitely, but maybe even the history of the world, just seems like a histrionic reaction to something that people generally agree was not a great day. So now we have Tucker Carlson in the release to Fox News of surveillance footage, over 40,000 hours of it. And the American people saying things they've never seen before. And some of it just isn't the picture we've been presented with for over two years now.
--:-- Molly Hemingway: So even as someone who followed this story closely and I actually covered not just the January 6th protest but two previous protests in D that were on the same issue frustration or opposition to how the election was conducted. What we learned this week was interesting. I mean, some of the footage that was shown by Tucker Carlson showed the well-known Buffalo hat-wearing protester who was sentenced to many years in prison was given a tour of sorts of the interior of the Capitol.
--:-- Molly Hemingway: There were more than half a dozen police officers who could have easily taken him into custody. And not only did they not do that, they were just kind of giving him a tour of the Capitol. That's just at odds with what we're told, that he was leading an insurrection and attempting to do a coup against the government of the United States. There was also the realization that the January 6th committee had manufactured a performance almost where they added audio to video footage to make it seem more nefarious.
--:-- Molly Hemingway: And where they deceptively edited a clip showing Senator Josh Hawley's evacuation from the Capitol to make it look like he was fleeing. When in context, you see that there was an escort of many senators out of the room they were in into another area. And not only was he not the only person, he was the very last of the senators to leave that area. So not the picture of cowardice that they were showing.
--:-- Molly Hemingway: And then finally, I thought the other thing that was interesting was that there's always been this mysterious protester, Ray Epps. He's on footage telling people they have to enter into the Capitol. And yet he's always been treated as a great friend of the government, despite telling people to enter into the Capitol and being pictured near the scene of so much violence. He was called a hero by members of the J6 committee.
--:-- Molly Hemingway: Well, it turns out that there's video evidence where he was not where he claimed to be when he sent some texts to his nephew claiming credit for what happened that day. So any of these things, you might have different ideas about what they mean or what their significance is, but they need to be dealt with. You need to engage with the substance of this footage and explain why you think it's significant or not significant.
--:-- Molly Hemingway: But most people just responded, most people in the media and a lot of people in politics responded by just being outraged that the American people got to see this footage. Yeah, let's talk about that more. We saw Senate Majority Leader Chuck Schumer actually tell Fox News to silence Tucker Carlson to not allow him to play any more footage. Shouldn't we be shining more of a light on more of the footage? What should we make of this type of reaction?
--:-- Molly Hemingway: I was so surprised because I watched the footage and I found it interesting. Like I said, I'd been following this, so it wasn't totally surprising. The outrage, the anger from people suggested that merely showing that this event was more complicated and nuanced than the sort of cartoonish description of it put forth by both the J6 committee and their allies in corporate media was really enlightening.
--:-- Molly Hemingway: And draconian calls for censorship by the Senate majority leader, but also chilling was that Senate minority leader Mitch McConnell tried to threaten Fox News, saying they made a mistake because the footage that Tucker Carlson showed was at odds with the official government narrative on that day. And anytime you're told that you're not allowed to say something because it's at odds with what the official government statement on something is, as a journalist, that just sort of is unnerving.
--:-- Molly Hemingway: One of the concerns raised by a number of legacy outlets, including CNN, was the idea that Fox News is getting to set the narrative by getting exclusive access to the footage. Is there any merit in this argument that the footage should not have been released to just one outlet?
--:-- Molly Hemingway: I would love to see the footage released just generally and not just generally to more journalists, but generally to the American people. There's something that can happen through crowdsourcing of information that can be of great assistance to legal efforts, to legal defenses. And, you know, we're told that this was the most important day in the history of the country. I don't actually think that at all.
--:-- Molly Hemingway: But if it is so important, then Americans should be able to see more about it. Imagine let's say you think you know crazily enough that 9 was a more important day than this day. And then the government said you're not allowed to see any video footage of what happened. That would be very weird. And it would make people think that there was something conspiratorial in play.
--:-- Molly Hemingway: And particularly since the Department of Justice has said that they will not explain precisely how federal agents and informants were involved in the protest. There's already so much secrecy going on. It's just not conducive to a healthy discussion of how that day occurred, when you're limiting the amount of information that people can get.
--:-- Molly Hemingway: And that was another thing that was interesting about the footage this week was that it showed, there was also the interview with a Capitol Hill policeman who explained just how unprepared Capitol Hill police officers were, how they were not made to be prepared for that day. And then on the day that it happened, they weren't getting clear communications from their supervisors.
--:-- Molly Hemingway: Again, if you think this is an important day, you should want to know about the security failures from that day. We're now getting allegations from lawyers who represented some of the January 6th defendants, including the QAnon shaman, they say that federal prosecutors did not provide them with all the footage. Meanwhile, the public has been getting an incomplete picture of the riot from the limited footage that was released.
--:-- Host (John Bickley): Now, let's go to our next guest, Ed Martin of the Patriot Freedom Project, who is currently representing three of the January 6th defendants. So Ed, what kind of legal implications does the release of this footage have?
--:-- Ed Martin: Well, there's a number of implications from a legal standpoint for my clients. I represent three of the men that are in prison and for the others. First, many of us were told there were 14,000 hours, right? Then there was 41,000 hours. Now we hear 44,000 hours. The question becomes an illegal proceeding. The Department of Justice, the prosecutors, have an obligation to make available everything that could be exculpatory, right? Could be helping in the defense of especially a criminal charge.
--:-- Ed Martin: You know, the bar changes. When you and I are in a contract dispute, you can fight all you want. It's different when they're taking away your liberty, a criminal charge or possibility, right? So the first thing is, what's the universe of video that can be reviewed? Now, I can tell you as someone who's been involved in this that the scope, the amount of hours is a huge burden for the prosecutors as well as the defense.
--:-- Ed Martin: Because it just a lot a lot of work to go through this and find out if there a 47th camera down this hallway and you defending your client is going down the hall or someone else or whatever. So what we saw come out because Tucker Carlson team went through a lot of it was some things that make you say wait that wasn't the narrative that the prosecutors were pushing in court.
--:-- Ed Martin: You know, for example, the QAnon shaman. And if it was intentional, they made a big, big violation. If it was unintentional, it's opened up a question about how the process works. So remember that guy pled guilty. He was presented with all the charges and he pled because his lawyer, I assume, gave him advice and that was the decision. And that's a different kind of a problem too.
--:-- Ed Martin: So there's a lot going on. And a lot of us are saying more eyes on this set of videos is more important than not. And objections about how it's presented are less important when you're going to lose your freedom. Now, one more observation, which I think is very, very important. If there's a problem with the amount of review, hours and hours, you know, hundreds, thousands of hours on the prosecutor's side, which is happening, there's a point where the court should say for nonviolent offenders, you should be having this process go slow from your home.
--:-- Ed Martin: And the reason these guys are being held in jail a lot of times is the judges are saying, hey, this was an armed insurrection. Even though you have no violent record, no criminal record, you might have served in the military, honorably discharged, et cetera, we're gonna hold you in jail for 30 months because we think you could be what, a threat? There's something very peculiar and very disturbing about being held.
--:-- Ed Martin: Again, you would have been sent home and you would have been on house arrest. You would have been on requirement to report. So there's a lot happening that a lot of the lawyers and defendants are looking at saying, Where do we go now? Can we potentially see the overturning or retrying of some of these cases as a result of this?
--:-- Ed Martin: Well, I think it's certainly possible. I mean, again, what's possible is when evidence comes to light that is problematic and may reveal a problem, the courts generally have the ability and the interest in looking back at it and saying, what happened here? There's something that a judge could issue a show cause order to the prosecutors and say, show me why what has now been portrayed in public happened like that.
--:-- Ed Martin: And there might be a good answer, right? They might say, no, no, here's the file. We gave them all this stuff to look at, you know. But I think there's a reason to believe that there's going to be some lawyers and some defense lawyers saying, hey, let's take a look at this. And yes, the possible. By the way, another possibility is that Congress could take away from the district court in D.C. the jurisdiction for this. They could say, you don't have jurisdiction.
--:-- Ed Martin: That's completely possible. Our Constitution says that Congress sets the jurisdiction. Because one of the objections I have had and concerns is that when Nancy Pelosi and the Select Committee went through hundreds and hundreds and hundreds of hours of TV and radio, earned media, I call it, to put out their version of what they wanted people to believe. The jury pool in Washington, D.C. is really, really stacked against these men and women, especially men, who are from Kansas, in the case of my client, one of them Idaho.
--:-- Ed Martin: And that's another thing someone could say is we've got to get these cases out of D.C. to a place where you can more likely be able to talk to a jury of your peers. So there's a lot that can happen, yeah.
--:-- Host (John Bickley): A very complex series of cases involving one of the most politically charged moments in recent U.S. history. So lots to unpack here. Ed, thanks for joining us.
--:-- Host (John Bickley): That was Ed Martin of the Patriot Freedom Project, and this has been a Sunday edition of Morning Wire. Starting a business can seem like a daunting task, unless you have a partner like Shopify. They have the tools you need to start and grow your business. From designing a website, to marketing, to selling, and beyond, Shopify can help with everything you need.
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