The Selfie Cops: Obstructing an Official Proceeding

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.

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46 replies
  1. Peterr says:

    These selfie cops might also have been charged like this, adding the felony charge, to place increasing pressure on them to cooperate. The other pressure here would be the use of the UCMJ against these two vets.

    Yes, the overall posture of the military is to defer to the civilian courts to handle post-separation legal affairs for trials of charges resulting from behavior after the accused left the military. But this is not a hard-and-fast rule, as the law allows for returning folks to active duty in order to hold courtmartial proceedings. Steven Levin (a lawyer and recently retired vet) wrote at JD Supra about the UCMJ and two cases where retired vets were charged this way, one of which was upheld when challenged and the other dismissed.

    Levin was writing with regard to Flynn’s post-pardon seditious conduction, and came to this conclusion:

    I am loathe to support military retirees being called back to active duty to face court-martial for misconduct occurring post-retirement. Michael Flynn, however, makes this proposition compelling, and Congress has clearly authorized it. . . .

    . . . Flynn’s conduct arguably provides a very strong basis for the exercise of court-martial jurisdiction. Unlike Larrabee’s case [which was overturned], military authorities reviewing Flynn’s conduct could easily justify the need to prosecute a retired general who seemingly threatened to overthrow the results of a free and fair election.

    The two cases Levin cities involved child pornography in one case and rape in the other. Given that the charges around Flynn, the selfie cops, and other vets involved in storming the Capitol revolve around sedition and advocating overthrowing the government, I suspect the military would have a strong incentive to hold these former military people accountable, especially because it reflects poorly on the military itself. For those marines involved who are no longer on active duty, there’s also that whole “once a Marine, always a Marine” mentality, which would make it harder for them to claim the Corps should not haul them into a general courtmartial proceeding.

    corrected the site ID (JD Supra) and link

    • BobCon says:

      Fracker wasn’t only a vet, he was in the National Guard as noted above.

      A quick search says he would not be subject to the UCMJ but could be under a state CMJ, but I have no idea of the details of when it does and doesn’t get applied.

      • Peterr says:

        In the article I linked to in my comment, Levin writes “Article 2(a) of the UCMJ extends court-martial jurisdiction over certain categories of military retirees, including “[r]etired members of a regular component of the armed forces who are entitled to pay.” ”

        Whether either of these two meet the “certain categories”, I don’t know, but there are procedures for bringing former military members before military courts. The more that vets are seen to have been taking part in this insurrection, the more the military is going to want to lower the boom on them. They may leave the question of imprisonment to civilian courts to avoid double jeopardy legal issues, but the military might want to strip them of their rank and pension (which civilian courts cannot do) to make clear how strongly they are offended by veterans storming the capitol with an eye toward interfering violently with elections, taking hostages, or executing elected officials.

        • bmaz says:

          Levin’s article is dubious, and very much undersells the compelling nature of the decision in Larrabee. The UCMJ is NOT coming for Flynn, and they never were. This is just nonsense.

        • Norskeflamthrower says:

          I’m a veteran and waaaaay back in my day when the draft was still going everyone had a 6 year obligation: two years active duty, two years of “active reserve” and two years of “inactive reserve”. Theoretically when on “active reserve” status any vet could be called back for “the needs of the service”. I’m not certain what kinda tail active service has these days but I have long wondered why the United States military didn’t recall Mike Flynn and court martial him and remove his rank and pension. I have felt all along that the military has played along with Trump, reluctantly or not, because they wanted to protect the golden goose. Now it is clear that, absent the Republican Party, the horrendous military budget would shrink to the size that could fit in the kitchen sink unless the military can extort the Democrats (Biden) to secure ongoing money in return for domestic security. I don’t think the coup is anywhere close to over and the clock is ticking.

        • Ruthie says:

          Democrats, whether Presidents or those in Congress (with few exceptions), have shown zero reluctance toward funding the military at or close to requested levels for at least the last 30 years. I hardly think that’s about to change significantly, much though I wish it would.

        • Norskeflamthrower says:

          “Democrats, whether presidents or those in congress…have shown zero reluctance toward funding the military…”
          That was yesterday and indeed it is the reason we’re in this tub of goo today, but the reason we have a full blown insurrection from the Republican party is that both Republican leadership and the military command know that the military budget is destined to fuel domestic recovery if the Dems win again in 2022.

        • ducktree says:

          “the horrendous military budget would shrink to the size that could fit in the kitchen sink”

          better yet small enough to be drown in a foot tub or kidney pan.

          Happy ground hog day!!

    • Matthew Harris says:

      Since one of them was current NG, would the case be more likely if they used any type of military resources while plotting, including use of on-duty time to plot, or military IT to communicate?

  2. PeterS says:

    If I understand things correctly, the 1512 charge concerns someone who “obstructs, influences, or impedes any official proceeding, or attempts to do so”. The 1752 charge concerns someone who “knowingly, and with intent to impede or disrupt the orderly conduct of Government business or official functions, engages in disorderly … conduct in … any restricted building”.

    “Obstructing an official proceeding” sounds to me rather like “impeding government business”; and 1752 refers to “with intent”.

    I am out of my depth here, so apologies if this is a stupid question, but what actions would justify only a 1752 charge but not a 1512 charge? Does the answer lie in the word “corruptly” in 1512?

  3. Zirc says:

    I have been seeing a lot of analyses and “think pieces” essentially concluding that the many of the insurrectionists were not blue-collar folks from the sticks, but business owners and managers — white-collar folks from the suburbs and other urban areas. The argument seems to be that they were not some crazed, under-served “other” but “us.” While I don’t quarrel with the white-collar conclusion, I could take issue with the “us” claim. That said, one corollary of this claim that these analyses don’t seem to be taking into account is that it is precisely because they were “white-collar, white folks” that the insurrectionists thought they could get away with it. What they are finding out is that it is one thing to talk tough about risking your life for your twisted vision of US democracy, and quite another to come to the realization that your skin is literally “in the game” and that real jail time could be involved. Would that this realization had come before 6 January.

    Zirc

    • Ruthie says:

      https://www.theatlantic.com/ideas/archive/2021/02/the-capitol-rioters-arent-like-other-extremists/617895/

      The point of at least this particular article is that the middle income, middle age demographic of many of the insurrectionists is distinct from that of the typical milita member; they’re members of mainstream society who’ve been radicalized to accept the concept that political violence is justified. It’s hard to put that genie back in the bottle once it’s let loose.

      • Molly Pitcher says:

        I’m not so sure about the difficulty of stuffing the genie back in the bottle where the “white collar, white folks” are concerned. I have to admit to substantial schadenfreude watching the Texas realtor who flew in the private jet wake up to the reality of her stupidity. She wasn’t the only one I have seen video of.

        I think there are plenty of the ‘tourist’ insurrectionists who are wholly regretting their visit to the Capitol. This of course does not include the self-proclaimed ‘patriot’ warriors who came armed for war and murder. I am referring to the idiots who looked like they were going to a particularly raucous Alabama v Auburn football game.

      • John Paul Jones says:

        Good article, but they note their lack of complete information for some of those charged. The profile they’ve constructed may shift as the cases move forward and more evidence comes out.

  4. Ginevra diBenci says:

    Thank you, Dr. EW, for demonstrating how the law-enforcement web is actually working. Following your link, I read the text of 1512 and got the impression that an often-used law is being brought back to its brass tacks, (a)(1). Along those lines, why would these prosecutors not use the same (1512) law (“Whoever conspires to commit any offense under this section shall be subject to the same penalties as those prescribed for the offense the commission of which was the object of the conspiracy”) to cover aiding and abetting?

  5. joel fisher says:

    An obvious move, as this was their stated intent from the gitgo. Seems like they better start cooperating or start thinking about what the sentencing guidelines have to say about obstruction of the single most important function that Congress performs. That, or wait to see if Trump gets reelected in 2024 and starts handing out pardons

    • PeterS says:

      Stated intent? Yes indeed. I read that two or three weeks prior to 6 January, Robertson commented on Facebook: “Civility has left me. I’m tired of always taking the high road and being beat by those who cheat, lie and steal to win and then allow their media to paint me as the bad guy. I won’t be disenfranchised. I’ll follow the path our founders gave us. Redress of grievances (already done) civil disobedience (here now) and then open armed rebellion. I’ve spent the last 10 years fighting an insurgency in Iraq and then Afghanistan. I’m prepared to start one here and know(n) a bunch of like minded and trained individuals.” Good spelling, shit sentiments.

      • JVO says:

        How are these scum buckets not also charged with felony murder? Their planned and intended actions of their self-documented conspiracy directly lead to the death of a Capitol police officer.

        • bmaz says:

          Uh, because federal felony murder is NOT the same as the rampant state level abuse of the concept, and anybody not directly involved in a death, in fact, should not be so charged.

        • joel fisher says:

          This might be a good time to reflect on the DC Code vis a vis the Federal Criminal law. One wonders if there is any daylight between the two with respect to felony murder? Also, was sacking the US Capitol building and killing the officer a DC City crime or is it only federal.

        • bmaz says:

          Meh, I think most people are too inured to felony murder proscriptions from state level applications, which are, arguably improperly, broad. I’d just like for folks to slow the roll a little bit and understand that this is far more complex than most think.

        • joel fisher says:

          The casual observer might notice a tendency of prosecutors in general to overcharge criminal activity and, I’m betting, felony murder is part of that from time to time. A cynic-me, say-might note that the majority of the potential defendants–all those who entered the building–are mostly uncharged having been released into the wild by the various police and security folks. Thus, there is an immediate question, not of overcharging, but not charging at all. And, dropping the occasional felony murder–DC Code or USC–into the mix is something one might expect to see. Does the Justice Department have Trump holdovers bending the proceedings?

        • bmaz says:

          Yeah, no. It is still awfully early, and you have no idea how the cases are being built this early. Take a chill pill. It will be seen how it all goes, but the people on the scent are a lot more experienced than we are. Give them a bit of space.

        • Raven Eye says:

          No kidding. We’re still shy of one month since actual event. I can’t begin to imagine the volume of evidence and supporting material that must be gone through to construct these cases.

          And enough already with whiny attempts to drag the UCMJ into this. I spent several years with a rotation of Army JAG lawyers in the next cubicle — reserve officers doing a year or more active duty, two of them DOJ prosecutors. UCMJ ain’t gonna happen for retrees, let alone discharged former service members.

        • timbo says:

          It might happen for general officers though who are in retirement tho. Correct me if I’m wrong here but couldn’t the President or the SoD order that to occur?

  6. Jenny says:

    Thank you Dr. Marcy.
    Obviously, to “protect and serve” does not apply to these two Rocky Mount, VA selfie cops.

  7. Atomic Shadow says:

    I am just a composer of abstract electronic music, not any sort of legal scholar. But I think it would be so interesting to see Rudy’s phone records for the days leading up to, including, and after January 6th.

    Same with Don Jr.

    Who were they talking to?

    • TooLoose LeTruck says:

      Astonishing, to watch this slow motion train wreck skid to a halt, no?

      The only rationale, if that’s an appropriate word here, I can come up for this collection of clowns is that they really did believe they would succeed in keeping Trump in office and he in turn would gratefully issued pardons like Tic-tacs…

      And now, as the cold, hard light of dawn breaks after the binge is over… no pardons are forthcoming… Donald has retreated to his lair w/ the millions he raised from his supporters and the true believers are left gasping for air while their lawyers explain just how limited their options really are…

      • Ralf Maximus says:

        Except there would be no need for pardons, because every single one of those idiots believed “the world was changing”. It’s 1776 again! They’d be hailed as heroes of the Second American Revolution® and rewarded handsomely for their actions.

        They REALLY believed that.

    • Ginevra diBenci says:

      Yeah, right? But it makes a kind of sense: If you don’t believe in democracy, just in outcomes that tend to go your way, then why participate in the democratic part (voting)? When an outcome you’ve been conditioned to expect to favor you doesn’t, you change that outcome. By any means necessary. Plus, lynch mobs are fun. They really get the blood going, except for those whose hearts get stopped. And this *was* a lynch mob. Let us not lie to ourselves.

    • timbo says:

      Being disenfranchised in the mind is still being disenfranchised. It’s important to understand that we do not fully understand why and how this all happened as yet because we are more bought into the system that these rioters were either trying to bring down or trying to illegally control. Most of us are not thinking and behaving like these rioters and very few of us have ever been in a similar mental state as they apparently were on that day. We cannot imagine ourselves easily as being in their shoes, although we should try to have enough empathy for what pushed them over the edge to help correct that in our society that has caused them to be the way they have become.

      • AndTheSlithyToves says:

        She needs to be charged for her lengthy/accessory involvement in this seditious uprising, and she needs to get her predator-husband to retire from the SCOTUS.

        • Troutwaxer says:

          If this is about her hiring the buses, I think Snopes debunked that. IIRC she left the sponsoring organization back in 2019.

  8. Stacey says:

    I don’t think laws like this exist right now, but I’d like to see Congress put in place some additional enhancements for crimes involving people who are trained by either our military or law enforcement agencies.

    BECAUSE these militia groups seek them out FOR their training, useful in seditious types of activities, I’d like to see an enhancement that says “If you are trained in X, Y, or Z capacity, and you then take yourself and your training into any of these groups–define as you will–you are subject to heightened scrutiny and enhanced sentences for offering/using/possessing that training in these groups.”

    Make it a bigger risk for the X-military and cops of all kinds to EVEN BE INVOLVED in these groups to off-set the extra advantage the groups see to recruiting them. I like someone else’s idea that background checks should include extensive white supremacy checks in social media, etc. for military and police, etc. Military skills training is LIKE a weapon that we give these people and turning that weapon on the country should have extra consequences, in my opinion. And the extra training should hold extra responsibility meaning, you know more about how to do us harm, so you are held more responsible for being involved with anyone who wishes do so.

  9. subtropolis says:

    I’d say that they’re applying 1512 to the more serious cases (as opposed to the dimwitted useful idiots) because they are making the case that these individuals were the foot soldiers of the main conspirators, who they plan to charge with seditious conspiracy:

    “… or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof …”

    The main conspirators did not have the courtesy to lead the mob. Nor were they interested in simply having the mob trespass. It follows that their primary actors should be charged under 1512 to reflect the role that they played in the broader conspiracy.

    I hope that makes sense. IANAL.

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