Judge spars with Justice Department over media protections

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A federal magistrate judge is challenging the Justice Department’s refusal to detail how it dealt with First Amendment and free press concerns before seeking to bring Capitol-riot-related criminal charges against Owen Shroyer, a Texas man who hosts a TV program on the right-wing, conspiracy-oriented Infowars website.

Last week, U.S. Magistrate Judge Zia Faruqui granted the government’s request for an arrest warrant against Shroyer on several misdemeanor charges relating to entering a restricted area at the Capitol on Jan. 6. During a telephone conference, Faruqui asked prosecutors whether the Justice Department considered Shroyer a member of the media and whether prosecutors complied with DOJ regulations about investigations impacting members of the press. The judge became troubled when prosecutors insisted they had complied, but declined to say how or to put their compliance on the official court record.

“The events of January 6th were an attack on the foundation of our democracy. But this does not relieve the Department of Justice from following its own guidelines, written to preserve the very same democracy,” Faruqui wrote in an order filed Tuesday. “As to the question of whether and how the Department of Justice complied with its policies, the court received an unsatisfactory answer.”

A spokesperson for the U.S. Attorney’s office in Washington declined to comment, but in a letter to the judge Monday, prosecutors respectfully told Faruqui that their compliance with the Justice Department’s internal policies is none of his business.

“Those safeguards fall within the province of the Executive Branch and do not bear on the question of probable cause before the Court,” wrote Assistant U.S. Attorney John Crabb Jr., chief of the office’s criminal division.

“A requirement to proffer to the Court how and on what basis the Executive Branch has made determinations under these internal Department policies would be inconsistent with the appropriate role of the Court with respect to such policies and would risk disclosing internal privileged deliberations,” Crabb added. “Such inquiries could risk impeding frank and thoughtful internal deliberations within the Department about how best to ensure compliance with these enhanced protections for Members of the News Media.”

Faruqui disagreed.

“The Department of Justice appears to believe that it is the sole enforcer of its regulations. That leaves the court to wonder who watches the watchmen,” the judge wrote.

Faruqui also noted that prosecutors had confirmed their compliance with the DOJ media policy to the court in past cases. Last December, the government affirmed that its decision to seek the email records of three Washington Post reporters in connection with a leak investigation complied with the Justice Department regulations.

Faruqui also noted that in June another magistrate judge, G. Michael Harvey, declined to sign a criminal complaint against alleged Capitol riot participant Matthew Purse. Harvey noted that Purse had emblazoned his vest and helmet with “PRESS” signs and carried what appeared to be a microphone boom, but the judge said prosecutors and the FBI failed to detail compliance with the Justice Department’s media policies.

After getting more information about Purse’s conduct, his apparent lack of media employment, and his website, Harvey granted the criminal complaint charging Purse with misdemeanor offenses, including entering a restricted area and parading in the Capitol.

Purse is set to be arraigned Friday on new indictment charging him with obstruction of Congress.

Shroyer faces less serious charges. Videos show him marching from the Ellipse to the Capitol grounds that day, often standing alongside InfoWars founder Alex Jones, but there’s no indication either man entered the Capitol building.

An FBI agent said in a court filing that Shroyer led the crowd in chants of “1776!” and exhorted those on hand to reject the results of last year’s presidential election.

“Today we march for the Capitol because on this historic January 6, 2021, we have to let our Congressmen and women know, and we have to let Mike Pence know, they stole the election, we know they stole it, and we aren’t going to accept it!” Shroyer declared.

Despite his concerns about First Amendment issues, Faruqui said prosecutors had established probable cause that Shroyer broke the law. “Even if a credentialed journalist engaged in the instant conduct, there would be no question of probable cause for arrest,” the judge wrote. However, he also noted that some of the statements the FBI quoted came from a live Infowars broadcast on Jan. 6, including Shroyer’s excited claim: “We literally own these streets right now.”

The host of “The War Room with Owen Shroyer” appeared in federal court in Austin, Texas, on Monday and was released on his own recognizance. He’s scheduled to appear via video at an initial hearing in his case in Washington on Thursday.

Faruqui also noted in his opinion that Shroyer was under an order to stay away from the Capitol building at the time of his visit earlier this year. The order stemmed from an incident in December 2019 when Shroyer allegedly disrupted a House Judiciary Committee hearing on President Donald Trump's potential impeachment. Shroyer was removed from the session after he abruptly jumped out of his seat and shouted, prosecutors said.

Prosecutors filed charges against Shroyer in D.C. Superior Court, but he resolved them through a deferred prosecution agreement. The deal required Shroyer to do 32 hours of community service and stay out of the Capitol and off its grounds. The stay-away order would have expired after four months, but according to prosecutors, it remained in place because Shroyer never completed the service nor filed proof of his work with the court.

Faruqui, who became a magistrate judge last September, was previously a prosecutor in the U.S. Attorney's Office in Washington.

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