Federal Judge Throws a Monkey Wrench Into Capitol Riot Prosecutions

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A federal judge ruled on Friday that the Justice Department could not use a contractor to organize grand jury materials relating to the more than 500 defendants who have been charged in the January 6 Capitol riot.

The evidence is largely in the form of social media posts, videos, and emails. The Justice Department agreed to pay Deloitte Financial Advisory Services $6.1 million to set up a database containing the evidence gathered by the FBI in their investigation. The database would be available to both the prosecution and the defendants in order to satisfy the requirement that all “exculpatory” evidence be given to the defense.

The government was going to give Deloitte access to sensitive grand jury information, however. The judge ruled that Deloitte was not a government entity and was not entitled to view the secret information.

Politico:

In a 54-page decision, Washington-based U.S. District Court Judge Beryl Howell rejected the government’s arguments that the contractor’s staff would qualify as the equivalent of government employees under the secrecy provisions of grand jury rules. She also said prosecutors had failed to demonstrate that there was a “particularized need” to give Deloitte’s personnel access to the grand jury materials.

“The term ‘government personnel’ is best construed, in accord with the bulk of the district court case law, as including only employees of public governmental entities,” wrote Howell, who oversees grand jury matters as the D.C.-based court’s chief judge.

“Deloitte, a private firm contracted by the government on a non-exclusive basis, is a private rather than a public governmental entity, and its staff are employees of the firm rather than the government.” Howell added, the grand jury secrecy rule “thus does not allow disclosure of grand jury matters to Deloitte and its employees.”

Essentially, the judge is telling the Justice Department that there are no shortcuts to justice. DOJ wanted to use Deloitte to save time in organizing and collating all the thousands of documents and video evidence in order to present it in a manageable, coherent manner. Judge Howell now says the DOJ staff will have to do it themselves.

Howell also raised concerns that the government’s broad request to share “all” grand jury material with Deloitte “means that the materials to be disclosed may have been collected in connection with investigations of individuals who are never targeted, never charged, or exonerated.”

“Since the government’s request is also prospective, applying to any related matters yet to be brought before a grand jury, the materials to be disclosed to Deloitte may relate to individuals still under investigation who may be indicted or exonerated in the future,” she added.

The Justice Department argued that they had built-in safeguards to prevent such circumstances from arising. Howell shot that argument down.

“The safeguards built into the government’s contract with Deloitte therefore do not assuage the concern that bulk disclosure to this private entity will undermine the interests of grand jury secrecy, particularly in such a high-profile and historically significant investigation,” Howell wrote.

Court watchers believe that the ruling will push back most of the rioters’ trials well into 2022.