Chief Judge rules private company cannot
be given access to Grand Jury materials.
My next story at Human Events is going to take a more in-depth look at how the Biden DOJ is denying January 6th defendants their rights to due process and a speedy trial by not being able to provide access to the “discovery” — evidence possessed by the government relevant to the case against them — and then using that as an excuse to not set trial dates while some defendants remain in custody pending trial.
Many cases have now been pending for more than six months since the government made the decision to seek indictments and arrest many of those who had attended the January 6th protests and gone inside the Capitol. Problems persist across all the filed cases with the government’s inability to deliver to the defendants the evidence in the government’s possession — most notably video evidence — that might be relevant and material to their cases.
The decision to move forward with a massive undertaking all on one time was a volitional choice made by the Justice Department — it was not compelled to do so. Even now, the government could move to dismiss charges without prejudice while it continues to process evidence and organize the cases it has already filed. The charges could be refiled at any point in time in the future prior to the statute of limitations expiring.
In an effort to obtain assistance from a contractor with the type of experience needed to manage massive amounts of customer data — manage it in a way that allowed easy search and access regarding individual cases — the DOJ signed a multi-million dollar contract with the international accounting firm Deloitte Financial Management.
The database that Deloitte was to create would have stored all the documentary, physical, and video evidence accumulated by the FBI, Capitol Police, and other federal agencies during the course of the investigation. From this database, the evidence regarding individual cases could be accessed and provided to charged defendants as required by the Federal Rules of Criminal Procedure.
But one particular such rule, Rule 6(e), prohibits the disclosure of “grand jury” material outside the Department of Justice or the Court without prior authorization. The Justice Department filed a motion with the District Court seeking such permission to provide access to Deloitte employees. On Friday, Judge Howell ruled that the motion did not sufficiently justify the request made and prohibited DOJ from giving the Deloitte employees access to the material from the January 6 investigations for the purpose of creating the database.
This leaves DOJ in the position it currently finds itself in having collected a massive volume of evidence on hundreds of persons already charged with crimes. It cannot sort through and produce the evidence for individual cases in a manner that complies with its obligations under the rules of procedure and its constitutional obligation to afford the defendants the “due process” to which they are entitled.
I’m going to return to this topic in several ways in the coming days, both here and at Human Events and American Free News Network. Dealing with all the implications of this Order on the ability of the government to move forward with the cases is a project much larger than what I want to tackle in this one piece.
The government is the architect of its own problems here. Nothing compelled the government to begin its nationwide dragnet to arrest anyone and everyone it could identify as having entered the Capitol on January 6. Nothing compelled the government to move forward with grand jury presentations and obtain indictments against every person arrested on a criminal complaint.
No one forced the Biden Justice Department to “swallow an elephant in one bite.” It would have been in line with normal Justice Department processes to start with the most serious cases — those which were of the highest priority in view of the FBI and DOJ — and hold off on initiating lower priority cases until the highest priorities were underway and all difficulties with evidence were resolved.
Nothing prevented the government — as is consistent with DOJ policy — from WAITING to seek indictments until it had all evidence for individual defendants segregated in a fashion that would make it easy to produce that evidence to the defense as required by the discovery rules.
There has been little — if any — legitimate justification for the urgency displayed by the DOJ in terms of its rush to arrest and charge before the cases are prepared.
The rule of thumb in DOJ used to be that a prosecutor should be ready to go to trial on the day the indictment is returned by the grand jury. All the evidence should be already gathered and organized in a fashion that makes production to the defendant simple. The only thing that should need to be done between indictment and trial is for the defense to prepare.
The time between indictment and trial is NOT supposed to be a period for the prosecutors to get their act together.