Yesterday, DOJ unsealed an indictment against the two selfie cops, Thomas Robertson and Jacob Fracker. The two were originally charged on January 12 — among the first to be charged — after they shared pictures of their exploits with colleagues at the Rocky Mount, VA police department, who in turn alerted the FBI.
Both are military veterans and Fracker remained in the VA National Guard when he was arrested.
The two were originally charged with two trespassing charges, 18 USC 1752 and 40 USC 5104. But the indictment adds the more serious obstruction charge DOJ has used against other more dangerous defendants, 1512(c)(2), along with an aiding and abetting charge for the same, 18 USC 2. That’s a felony that, if they’re convicted, will mean the two men will no longer be able to own guns (and probably won’t work in law enforcement anymore).
I want to look at how DOJ seems to be using that charge, because I expect more people will have it added as their case move to indictment.
The charge is an unusual application of what is normally treated as a witness tampering statute, which most people think of in conjunction with investigations and prosecutions. But the certification of the vote is every bit as much an “official proceeding” as an investigation or trial is. The standard boilerplate being used in insurrectionist charging documents establishes that the vote certification was suspended from 2:20PM, literally minutes after rioters first breached the Capitol, until shortly after 8PM.
Shortly thereafter, at approximately 2:20 p.m. members of the United States House of Representatives and United States Senate, including the President of the Senate, Vice President Mike Pence, were instructed to—and did—evacuate the chambers. Accordingly, the joint session of the United States Congress was effectively suspended until shortly after 8:00 p.m. Vice President Pence remained in the United States Capitol from the time he was evacuated from the Senate Chamber until the sessions resumed.
Up until the indictment against the cops was unsealed, DOJ had used the 1512 charge primarily with people who, in their charging documents, were shown to have done more (there were around 28 before these cops were charged with it). They include:
- The Oath Keeper defendants
- Many of the Proud Boy defendants
- Some, but not all the people, who were accused of assault, damaging property, or interfering with cops
- Those — like Gina Bisignano and Riley Williams — who were organizing traffic
- People — like William Calhoun — whose promise of violence and intent to interfere with vote counting was explicit
- People — like Leo Kelly — who got to the Senate or Speaker’s lobby (though not all who did were charged with 1512)
Aside from serving as a way to bring felony charges against a defendant, perhaps because the government believes the person to be a greater threat, there’s no clear rhyme or reason to this.
The primary hint of the Selfie Cops doing something like that came, after the fact, in boasts from Robertson claiming to have “attacked the government.”
“CNN and the Left are just mad because we actually attacked the government who is the problem and not some random small business … The right IN ONE DAY took the f***** U.S. Capitol. Keep poking us.” He also stated that he was “proud” of the photo in an Instagram Post that was shared to Facebook, because he was “willing to put skin in the game”
But it is also the case that the initial complaints seemed to function as a kind of triage, a way to get participants in the insurrection into the legal system to allow more focused investigation of them. Undoubtedly, the FBI continued to investigate after the initial charges.
And such an investigation — especially for people whose initial arrest didn’t rely on search warrants and who were arrested before the shape of the attack became more clear — might reveal evidence that these two cops had something more in common with the others charged with 1512, such as explicit plans to shut down the vote count or ties to a militia organization. And unlike the arrest affidavits, which put so much evidence in a few pages, we shouldn’t expect to see any of that evidence for a charge in an indictment until a litigation leading up to a trial. Indeed, that may be why DOJ feels free to include the charge in order to raise the stakes on the prosecution: because they can do so without having to tip their hand to other coup conspirators.
I expect we’ll see more 1512 charges, which will separate the people DOJ is truly concerned about from those who stupidly trespassed in support of their idol Donald Trump.
Update: DOJ did the same thing with Richard “Bigo” Barnett. In his case, he’s facing enhancements on some of these charges because he had a stun gun walking stick with him.