Understanding The Broader Context Behind The J6 Footage Release

And how Congressional Republicans can help furnish all parties with a clear set of guidelines to help navigate the dicey and unprecedented constitutional terrain for these charges

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This week has been quite eventful for those who have shed blood, sweat, and tears for the cause of January 6^th over the past few brutal years, and specifically, the victims – many of whom still languish behind bars, detained without trial or criminal charges filed against them – a doubtless breach of their constitutional rights. Nevertheless, there is a silver lining in the narrative shift of how January 6^th – the real January 6^th, and not the poorly scripted, astroturfed series of events sculpted by a patently hostile government that was the basis for Washington’s show trials last summer – is now being perceived by the public. Granted, the rollout of what really happened has been painstakingly slow, exacerbating what already is one of the gravest injustices committed by the United States government against the American people in modern history, bar none. 

Thus, every waking moment a victim remains locked behind bars, having been denied due process of law, represents a shocking affront to the constitution and rule of law. But there is hope. The catalyst for the narrative shift has been Tucker Carlson’s indeed heroic disclosure of at least portions of the reported ~40,000+ hours of Capitol surveillance tape from the January 6^th protests. This disclosure, the outcome of a deal brokered with Kevin McCarthy and the valiant twenty congressional holdouts, who stonewalled his claim to House Speaker back in January by milking every last ounce of what they could get from him given their razor thin congressional majority, has reaped dividends. To his credit, McCarthy has made good on this and several other all-important promises thus far, lending credence to the strategy pursued by Trump and congressional allies like Marjorie Taylor Greene, who tossed their weight behind McCarthy. In doing so, they incurred a tremendous risk, including a firestorm of criticism from the grassroots. 

That is not to excuse McCarthy’s or Tucker’s management of the January 6^th disclosures, nor is it to diminish the dangerous precedent now being set in allowing a media personality exclusive access to potentially exculpatory evidence for so many of these defendants. From the very beginning, January 6^th may be classified as one of the most bald-faced psychological operations in modern American history. Republicans helped legitimate the day’s significance by referring to the protests from the get-go as an “insurrection”– a highly charged, albeit grievously ahistorical term that completely neglects the Leftwing riots all throughout the summer of 2020 following George Floyd’s death (the culmination, frankly, of protests – many of which had gone violent – that had occurred all throughout Donald Trump’s presidency, which started on election night 2016).

These riots, which were executed by leftist paramilitary groups like BLM and Antifa, razed entire cities to the ground and cost American taxpayers billions in damages – aided and abetted by an overtly hostile regime-backed corporate media apparatus. All throughout, however, the Right uncritically allowed the Left to set the rules of the game. Never mind the fact that an overwhelming majority of protestors who showed up at the Capitol on January 6^th were unarmed, demonstrated peacefully, and did not even enter the building. Those who did, as the video evidence uncovers, did so in many cases at the directive of Capitol Police, who cavalierly escorted the protestors through the corridors of the building, including into the Senate floor, the location where Jacob Chansley – better known as “QAnon Shaman” – milled about peaceably for several minutes, before being arrested and escorted from the premises.

Many on the Right, myself included, criticized the initial decision by McCarthy to allow Tucker Carlson, a private citizen with no direct interest in these cases, unilateral access to the otherwise undisclosed surveillance video. For his part, Carlson is essentially using his massive platform as the most watched cable news talk show host to rouse the court of public opinion, and counter-signal much of the indoctrination that had been rendered, both from the federal government and through corporate media apparatchiks, upon the public writ large in the two-plus years since January 6^th. By doing this, Tucker is partly playing into and enabling the fundamentally sensationalized and media-driven show trial narrative that has characterized the administration of justice regarding January 6^th. 

That interpretation, however valid, fails to appreciate that January 6^th was – lock, stock, and barrel – a show trial. Thus, whenever dealing with a case involving this level of public scrutiny, conventional judicial procedures must, for better or worse, take a backseat to alternative channels. Because, to a large extent, public sentiment operates as a very influential, albeit informal, check on the judicial proceeding, the administration of justice must draw from “soft,” media-driven extralegal procedures in a case like this as much as it does conventional ones. Evidence that this is a show trial is readily gleaned from the asserted crimes on which the Government's own case rests – most underscored in the gravest of such criminal charges filed: seditious conspiracy – which might be plausible but for the act of sedition – namely, an insurrection – that is blatantly missing here!

As I noted before, the events which transpired on January 6^th were not even remotely akin to an insurrection or seditious activity in the plain, original, or historical meanings of those words, nor were the protestors driven by a legitimate capacity, let alone desire, to destroy or overthrow the government. Boundless circumstantial evidence supports this fact: starting with none other than the nonviolent charges of so many of the crimes brought by the Justice Department against the J6 protestors – the overwhelming majority of which were “parading” in the Capitol or simple trespassing. Furthermore, as Julie Kelly reported, “[o]f the 518 who accepted plea agreements, 385 pleaded guilty to misdemeanors and 133 pleaded guilty to a felony.” 

In addition, the unfortunate reality is that in our world, considering how antagonistic most mainstream outlets have been to disclosing the truth out about January 6^th, the fact that someone with Tucker’s level of influence would be willing to disseminate something of a counter-narrative to the official, regime backed one, accepted by leaders of both political parties, should be seen as a blessing (if somewhat mixed in light of the rather dubious backdoor channels this information came out).

Now, some critics have rightly criticized Carlson for apparently backpedaling on the last couple nights of the broadcast, when the talk show host appeared to instead broadcast a truncated, slapdash package of footage, which several prominent conservative voices ascribed to subterfuge on part of the Murdoch family, the ownership of Fox News. This relies on the well-founded premise that the Murdoch family is overall hostile to the January 6^th narrative – explained by worries of incurring financial and other liabilities by inciting the official regime narrative, as well as for political reasons born out of a desire to replace Donald Trump, whom they consider an adversary, as GOP kingpin. There is indeed no shortage of truth to these claims, particularly given the great lengths the Murdoch’s have gone to mobilize institutional support behind a would-be Trump challenger for President. This escalates the urgent need for Carlson to be as transparent as possible about the process by which his team is disseminating tens of thousands of hours of footage for a readymade 1-hour bit of programming – a need that will remain urgent for as long as the footage remains otherwise not publicly accessible via open source or other channels.

In an ideal world, Carlson would have released all 40,000 or however many hours of footage he observed alongside the primetime broadcast itself. The broadcast, in turn, would be used to condense only the most powerful and exculpatory footage for maximum exposure. Granted, to varying degrees, this is what Carlson at least attempted. (It should also be noted here that on Sunday, Kevin McCarthy appeared to contradict the official story about how the footage was transmitted to Carlson. Rather than provide Carlson and his team with the tens of thousands of hours of footage, McCarthy said, “I didn’t give the tapes, I allowed [Carlson] to come see them, just like an exclusive with anybody else. My goal here is transparency.” To date, neither McCarthy nor Carlson has been particularly straightforward about how these tapes were released, how much footage was viewed, where and when the disclosures were made, and how Carlson has been able to broadcast the previously undisclosed footage without having been officially given the tapes, as claimed by McCarthy himself.)

But under ideal circumstances Carlson would have also provided, either in writing or on the broadcast to his audience, an overview of his production team, and the instructions and expertise they possess which allows them to select the best and most exculpatory footage for use within the hour-long time slot in turn. Ideally, Carlson would have provided a step-by-step breakdown of just how his team evaluated the footage, and whether their judgments are based on general legal guidelines provided by McCarthy, the Justice Department, the defense attorneys, or some other counsel, to put the best possible case to the public — or whether they are simply using their own discretion as, presumably, non-lawyers. He would have also given assurances that his team had both the personal and technical capacity to scrutinize what amounts to over 4.5 years of footage within the period of time Carlson came into possession of the J6 footage.

While the jury’s still out on whether Carlson accomplished the intended goal, at the very least it does feel like there has been a palpable shift in the public narrative concerning January 6^th. That is not to say the contents of the Carlson broadcast were particularly revelatory or shocking, or even previously unknown by those who have been long personally invested in this seemingly never-ending saga. Nor is it to excuse Carlson’s apparent last-minute backpedal, which, based on McCarthy’s most recent comments, may be due to his team not having actual possession of the footage in the first place.

Indeed, there is still much more work to be done in terms of improving the narrative for J6 victims, but the past week’s events have made breakthroughs to help legitimize the importance of these cases in the court of public opinion. In a stroke of good fortune, concurrent with the Carlson disclosures, the defense attorneys representing the Proud Boys filed a motion to dismiss the case in toto upon revelation that the FBI had engaged in both the destruction and doctoring of evidence. The FBI further made an egregious claim that attorney-client privileges did not apply to the Proud Boys under the bogus theory that the privilege is automatically “waived whenever a defendant communicates by jail email or phone with his counsel.”

Signaling a change in the cultural headwinds, at the same time in which all this new information was being released by Carlson, the Proud Boys trial had to be halted because of the accidental disclosures by attorneys for the Justice Department of potentially classified evidence – e.g., text messages between FBI officials, seeking, among other things, to “destroy 338 items of evidence.” The leak, which of course was by happenstance, unrelated to the Carlson disclosures, nevertheless may be seen as one component of a broader shift in public opinion surrounding January 6^th. And to further add insult to the Government’s injury, the number one single on iTunes right now is the J6 Prison Choir’s rendition of “The Star-Spangled Banner,” which is overlaid by President Trump speaking the pledge of the allegiance: a potent blitzkrieg of patriotism that signifies, if nothing more, a rallying of public support on behalf of J6 victims as all this new evidence comes to light.

How Sympathetic Congressional Republicans Should Respond

All that said, there is still a long, arduous, uphill climb before the January 6^th victims are given a fair trial – both in official lawcourts and in the court of public opinion. Fortunately, the dam that contained the ossified, official regime narrative was dealt a blow last week with the Carlson disclosures. It is imperative now that the positive coverage only continue, which should be aided by leading advocates in the new House majority – people like Matt Gaetz and Marjorie Taylor Greene – who should further capitalize on last week’s momentum by demanding Speaker McCarthy release all 40,000+ hours of footage open-source, so that everyone – defense attorneys, journalists, and the public at large – will be able to observe what truly happened, without the selective curating by mainstream media networks.

Separate and apart from that recommendation, however, congressional Republicans should work to maximize transparency in this process. Indeed, they have a duty to the defendants, many of whom remain imprisoned without trial, and to the American people at large, who have a right to know on what constitutional grounds the government is detaining their fellow countrymen and women.

Sympathetic Republicans also have a duty to government officials – including both elected lawmakers and federal prosecutors investigating these claims – many of whom remain woefully ignorant about the basic facts of these cases, or how the operative law applies – the paradigmatic example being the application of attorney-client privilege in the Proud Boys trial – that would presumably amount to a first order concern for any judge or prosecutor seeking to impose long term sentences to any defendant. Beyond that, Republican lawmakers should help provide clear guidelines to defense attorneys themselves, many of whom incur tremendous personal and financial liabilities from an extremely antagonistic legal profession, to take on these cases. Ideally, Republican lawmakers would collaborate with some of the more prominent defense attorneys involved to establish easy-to-follow procedures that would streamline access to critical evidence, such as those tapes still subject to protective orders, so that they could put their best foot forward in representing their clients. Sympathetic Republicans should also be looking to find ways to raise money for the defendants, recognizing the unprecedented and sensationalized circumstances under which these trials are taking place. At the bare minimum, Republicans should help furnish a clear set of legal guidelines that explains why, and under what authority, the Government may detain January 6^th defendants without trial.

To that end, here is a short list of recommendations for congressional Republicans that in a perfect world would be met with exhaustive answers on a readily accessible public server, alongside the footage itself, which should be open sourced. To maximize transparency, the following resources and guidelines should be updated regularly so that all parties might have the latest information available to ensure a fair and equitable judicial proceeding that strenuously upholds the constitutional rights of those facing serious criminal penalties:

1.       Provide definite answers as to how much Government surveillance footage exists, where it originated, and who curated it for public disclosure. Make all such footage open source on a server available to the public.

1b. Short of that, establish a clear and straightforward set of procedures that investigative journalists and other interested parties might follow to obtain access to the footage.

2.      Provide updated statistics as to how many defendants remain detained without trial, where they are located, and the operative constitutional and legal principles that would allow such defendants to be imprisoned without violating due process or other fundamental constitutional rights.

3.      Provide comprehensive and updated statistics as to how many defendants were charged with crimes, the nature of the crimes, and to the extent possible, the legal justification for charging those defendants with such crimes (particularly for those charged with seditious conspiracy and other serious offenses, which warrants a more detailed explanation to ensure no constitutional rights are violated).

4.      Provide comprehensive and updated statistics as to how many defendants agreed to plea deals, and to the extent possible, the nature of the agreements and whether such agreements have been made publicly available.

5.      To the extent any evidence is protected by government order, provide an exhaustive legal commentary on the justification for such orders – replete with legal authorities – so as to accord defense attorneys a complete account of any privileges implicated and, to the extent possible, the proper scope and application of all applicable privileges.

6.      Recognizing the seriousness of the charges, and the high risk with which due process rights may be endangered by a regime manifestly hostile to the interests of the defendants, Republicans should work diligently and swiftly – and with maximum transparency – to enact a clear set of guidelines to rehabilitate public confidence that the rights of all parties are being upheld.

6b. Where the government has fallen short, these guidelines should provide responsive corrective measures, perhaps with the guidance of the victims’ families, defense attorneys, and the public. Defense attorneys should have a guarantee that any outstanding questions they might have about process will be timely responded to, and that they will have a friendly forum by which to express any objections to ensure a fair and orderly procedure that strives to respect and uphold the rights and interests of all parties involved in the best possible way.

Setting firm guidelines, like those outlined above, would be a critical first step towards restoring transparency and trust in the judicial process – a process that has been severely undermined by the amount of brazen hostility and scapegoating directed by the Government against the J6 defendants to date. Such guidelines would also help provide much-needed clarification on salient facts and legal principles for all interested parties. These guidelines should be updated whenever new information comes to light, or when the public interest – which is an indispensable component in a case like this – implicates rights that, once given the opportunity for public deliberation, demand a timely response by the Government to ensure a fair and orderly (to say nothing of constitutionally rigorous) administration of justice.

Congressional Republicans, sympathetic to the cause of January 6^th, must now act diligently to right the many terrible wrongs already committed against countless Americans wrapped up in this cause to date. This duty is animated not only by moral and constitutional prerogatives, but even more fundamentally, the fabric of constitutional order itself – which hangs in the balance, and risks being put asunder for good, if the Government can run roughshod with impunity over the God-given rights of its own citizens. That, ultimately, is the greater significance the cause of J6 represents, and is why this matter is so important for those who still believe in freedom.

Paul Ingrassia is a two-time Claremont Fellow: he was the Jack Roth Charitable Foundation John Marshall Fellow for 2022 and a Publius Fellow in 2020. Mr. Ingrassia graduated from Cornell Law School in 2022. His Twitter handle is: @PaulIngrassia.