Zia Faruqui Doesn’t Want to be DOJ’s Fall-Guy for Media Policy Secrecy

As I noted, on Friday, InfoWars personality Owen Shroyer was charged — at this point, with just trespassing — in the January 6 insurrection. But as I also noted that his affidavit, “is interesting because it clearly lays out evidence — at a minimum! — that he could be charged with obstruction because he specifically talked about obstructing the vote certification on January 5.” As a general practice, the government has arrested many non-violent January 6 defendants on trespassing charges and then fleshed out any further charges afterwards (in part, because that maximizes the opportunity to get people to cooperate).

Tuesday, some documents were unsealed that reveal I’m not the only one who thinks so. So, apparently, does Zia Faruqui, one of three DC Magistrate judges dealing with all the January 6 cases as they come in (and, of note, until last year an Assistant US Attorney in the DC US Attorney’s Office).

Faruqui attempts to hold the government to public record standards

We know what Faruqui thinks because he has been trying to force the government to treat court records as the public documents they’re supposed to be, as he did here.

Not long after he became a Magistrate judge, Faruqui got stuck with government requests to collect journalists’ communications that were predictably controversial when they were disclosed. In an order issued in July, Faruqui scolded the government for suggesting they could seal the records request (along with its tactically unique approach to getting journalists’ records) indefinitely.

A sealed matter is not generally, as the government persists in imagining, “nailed into a nondescript crate, stored deep in a sprawling, uncataloged warehouse.” Leopold, 964 F. 3d at 1133 (citing RAIDERS OF THE LOST ARK (Lucasfilm Ltd. 1981)). Rather, it is merely frozen in carbonite, awaiting its eventual thawing. Cf. THE EMPIRE STRIKES BACK (Lucasfilm Ltd. 1980)

As Faruqui describes it in an order drafted last week along with the arrest warrant for Shroyer, but not released until yesterday, the government was trying to do the same with Shroyer’s arrest warrant. When the government asked for the arrest warrant, he asked if they would memorialize their basis for finding that Shroyer’s arrest met DOJ’s media guidelines. Magistrate Judge Michael Harvey forced the FBI agent to include language addressing the issue earlier this year in the arrest warrant for Matthew Purse; in that case, the Agent simply included language explaining how he had determined that Purse was not a member of the media.

But, as Faruqui describes it in his order, in Shroyer’s case, the government was unwilling to assert that they had followed their media guidelines with Shroyer in the affidavit, much less explain their thinking surrounding it.

On August 19, 2021, the undersigned had a telephone conference with representatives of the USAO regarding the Complaint. The undersigned inquired as to whether:

  • the Department of Justice considered Shroyer to be a member of the media;
  • the USAO had complied with Department of Justice policies regarding the arrest of media members; and
  • the Assistant U.S. Attorneys would memorialize the answers to these two questions in the Complaint, consistent with their prior practice.

The USAO represented that it had followed its internal guidelines but was unwilling to memorialize that or explain the bases for its determinations

Afterwards, Faruqui sent a draft of his order to USAO (that is, to his former colleagues). One of his former supervisors, John Crabb, wrote back and said that DOJ doesn’t have to share this because it would reveal internal deliberations.

[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. Moreover, 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.

Crabb further explained that the Shroyer case is distinguishable from the Purse case.

As the Court notes, Addendum Order at 7-8, this Office has conferred on previous occasions with the Court regarding certain aspects of the Department’s media polices. In the main, those situations are distinguishable; and, in any event, the government is not bound by those prior actions.

Probably, this situation is distinguishable because Purse was affirmatively shown not to be media. Shroyer clearly is, in some sense. Under DOJ’s media guidelines (assuming they’re not using the exception for a suspected foreign agent), that leaves two possibilities. Either they deemed some of the things for which Shroyer got arrested to be outside his newsgathering role. And/or they determined he had committed a crime in the course of his newsgathering activities, the equivalent of hacking to obtain source materials for journalism.

DOJ’s reliance on the Deferred Prosecution Agreement, including Shroyer’s failure to even begin paying off his community service debt before January 6, provided DOJ with an easy way to publicly establish a crime largely independent of his actions on January 6, which is one of the reasons I was so interested in how they had arrested him.

Faruqui’s probable cause determination

But Faruqui’s order may hint at what DOJ is really thinking.

Faruqui’s order is organized this way:

I. Introduction, explaining why he’s writing this order.

A. Events of January 6th, explaining the content of Shroyer’s propaganda (including propaganda from before he trespassed on January 6)

B. Prior Criminal Conduct, explaining Shroyer’s past disruption charge and his DPA

C. Statutory Violations, explaining the basis for the two misdemeanors Shroyer was charged with

D. Inquiry of the Court, explaining that Faruqui tried to make DOJ go on the record for how this complied with their media guidelines

II. Standard, explaining the reasons for treating the press with sensitivity and laying out the parts of the media guidelines that focus on protecting newsgathering

III. Analysis, describing how on two earlier occasions DOJ had provided more on the record than they had here, but were unwilling to do so here, then restating Shroyer’s actions

IV. Conclusion, finding that even a credentialed journalist committing the same actions Shroyer had would have reached probable cause for a crime but also finding that DOJ gave an unsatisfactory answer about how it applied its media guidelines [my emphasis]

It’s the last bit — the end of Section III and the short Section IV — I’m most interested in. In one paragraph, Faruqui explains that DOJ said something to him (presumably before he approved the warrant on the 19th) confirming they had followed the media guidelines, but were unwilling to put that they had done so or what their analysis was in writing. That’s what led him to draft this order and ask again for them to put it in writing.

Yet here the government is unwilling to address its compliance with its internal regulations regarding the press. When questioned by the Court, the USAO’srepresentatives respectfully stated that they had followed such guidelines but would not formally state this in their pleadings; nor would they memorialize the reasons underlying their determination that Shroyer was not “a member of the news media” who had committed the instant offenses “in the course of, or arising out of, newsgathering activities.” 28 C.F.R. § 50.10(f)(2). 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.

The next paragraph restates Shroyer’s alleged crime, but combines stuff that appears in sections I.A. and I.C., above, which results in a description of alleged crimes that go well beyond trespassing (though Faruqui does review how Shroyer knew he couldn’t “engage in disruptive and riotous behavior” at the Capitol).

Shroyer’s January 2020 arrest gave him clear notice that he could not engage in disruptive and riotous behavior at the Capitol Building and Grounds. Yet beginning on January 5, 2021, Shroyer began urging others to join him in protest at the Capitol Building and Grounds premised on the false claim that the election was “stolen.” Statement of Facts at 3. This conduct continued on January 6, 2021, when Shroyer made additional statements urging on the mob and personally entering the restricted area of the Capitol building in brazen defiance of his DPA. See Statement of Facts at 4–6. His stated goal was clear: to stop former Vice President Pence from certifying the election by “tak[ing] the Capitol grounds”. Id. at 6. Shroyer described his personal role in the riot: “We literally own these streets right now.” Id. at 6. On January 6th, Shroyer was “aid[ing], conspir[ing] with, plan[ning], or coordinat[ing] riotous actions.” United States v. Munchel, 991 F.3d 1273, 1284 (D.C. Cir. 2021).

In the bolded language, Faruqui describes obstruction as it is being charged in January 6. He then purports to cite from Munchel, the DC Circuit decision that DC judges have used to separate those who assaulted cops and those who masterminded the attack from those who pose less of a threat going forward. Only the quote doesn’t appear in the opinion, not even in other grammatical form. Faruqui’s citations should end before (or bracket) the word “riotous.” Here’s how the passage appears in Munchel:

In our view, those who actually assaulted police officers and broke through windows, doors, and barricades, and those who aided, conspired with, planned, or coordinated such actions, are in a different category of dangerousness than those who cheered on the violence or entered the Capitol after others cleared the way.

This is, as I noted, the language that District judges have used since Munchel in justifying detaining people. Faruqui is seemingly saying that Shroyer did things — and this language has primarily been used with militia leadership — that have gotten other people detained. Effectively, Faruqui has suggested that Shroyer is, like Kelly Meggs and Joe Biggs, one of the key leaders in this attack.

After having likened Shroyer to the likes of Meggs and Biggs, then, Faruqui says (in the conclusory section) that there is probable cause that Shroyer committed the crimes he has just described.

The undersigned finds there was probable cause to believe Shroyer committed the above-described violations.

Coming immediately after the sentence likening Shroyer to Meggs and Biggs, this language might not refer solely to the trespass charges approved in the warrant, but also to the broader language Faruqui used, encompassing obstruction and conspiracy.

And indeed, the affidavit does substantiate (at least) obstruction charges, even if it doesn’t include that among the charges (as I noted before all these documents were unsealed).

Who is making this case — Faruqui or DOJ?

As noted above: according to Faruqui’s order, it’s not that the government didn’t say whether it had adhered to its media guidelines. He explicitly says that they did.

The USAO represented that it had followed its internal guidelines but was unwilling to memorialize that or explain the bases for its determinations.


When questioned by the Court, the USAO’s representatives respectfully stated that they had followed such guidelines but would not formally state this in their pleadings; nor would they memorialize the reasons underlying their determination that Shroyer was not “a member of the news media” who had committed the instant offenses “in the course of, or arising out of, newsgathering activities.” [my emphasis]

Rather, DOJ refused to put that it had in writing.

Which makes it unclear whether this extrapolation from Shroyer’s arrest affidavit, from the details that substantiate the two trespassing charges in it to the details that could not have any role in a trespassing charge but which show that Shroyer pre-meditated an attempt to stop the vote count, is Faruqui’s own extrapolation or something he heard in his discussions with DOJ last week, the things they’re not willing to put into writing.

Contrary to some analysis of this order, it is not a prospective order for anything — Faruqui had already approved the arrest warrant when he issued it. Nor is Faruqui saying that he doesn’t know if DOJ considers Shroyer a journalist (though he’s more oblique on that point than he is on others).

Rather, the reason he wrote this order was to memorialize what he understands, from conversations he had with DOJ, went on.

The Court issues this addendum opinion to ensure that the record accurately reflects: 1) the conversations between the Court and the Department of Justice; and 2) the Department’s break with its prior practice of confirming its adherence to these regulations.


The Court issues this addendum opinion in response to the USAO’s break with prior practice, and to ensure that the judicial record accurately reflects: 1) the conversations between the Court and the USAO; and 2) the undersigned’s understanding of the steps taken by the Department to comply with 28 C.F.R. § 50.10.

What Faruqui doesn’t say, though, is where in this opinion DOJ’s representations (at a minimum, that they did, in fact, follow media guidelines) end and where his own analysis begins. That is, we don’t know whether the analysis that implies Shroyer is one of the key planners of this operation, just like Biggs and Meggs, is Faruqui’s analysis or what DOJ explained, verbally but not in writing, when they explained that they had complied with media guidelines.

Update: DOJ has unsealed an Information charging Shroyer just with trespassing.

42 replies
  1. WilliamOckham says:

    Is it possible that the DoJ just doesn’t want to be forced to admit that InfoWars is a media outlet?

  2. TooLoose LeTruck says:

    O/T here but I’m wondering what our resident legal minds think of the lawsuit today filed by Capitol police officers targeting Trump and others over the Jan 6 riot?


    Is there any chance the lawsuit will succeed, or is this just prove to be yet another exercise in futility?

    If Trump ends up being protected by ‘legislative immunity’ (is that the correct phrase?), what about the other parties being sued?

    I don’t know what to think…

  3. Molly Pitcher says:

    From the Daily Beast: Capitol Cops Sue Trump, Associates in Sweeping Jan. 6 Civil Suit

    “A group of Capitol Police officers have sued former President Donald Trump and some of his associates in a sweeping civil suit that alleges he worked together with far-right activists and extremists to promote the election lies that underpinned the Jan. 6 insurrection. Associates like Roger Stone Jr. and groups like the Proud Boys are among the defendants. “This is probably the most comprehensive account of Jan. 6 in terms of civil cases,” said Edward Casper, the lawyer leading the suit, which alleges that Trump and the other defendants violated the Ku Klux Klan Act by interfering with Congress’ constitutional duties.”


  4. Savage Librarian says:

    Owen It

    🎶Me and Alex Jones
    Got the right wing goin’ on,
    We rallied up the throng,
    But he’s too headstrong,
    So I’m just Owen it now🎶

  5. klynn says:

    Could really use a Rayne “F” covid post about now. Especially regarding mask-optional school policies.

    One vaccinated friend, exposed by young niece who attends a mask-optional school, died today. A week after her exposure.

    Another vaccinated friend, with no health issues, is struggling as well.

    I look at Iceland and think, “Sanity.”

    • Geoguy says:

      I’m sure Rayne is all over this one. See “two-hedge-fund-billionaires-hedge-their-bets-on-regeneron-as-florida-governor-ron-desantis-opens-regeneron-treatment-centers-for-covid-19-across-florida” at wallstreetonparade.com

  6. RWood says:

    Excellent piece, Bmaz.

    While on the topic of good lawyers, I have a question.

    We’re all familiar with Powel, Wood, Pierce, Guliani, and whatever Kraken is spewing nonsense this week, but are there any lawyers who are actually worth their salt backing trump and his Big Lie that we should be watching? Threats are plentiful, but are any of them credible?

    Who should we be worrying about and why?

    • bmaz says:

      This is Marcy’s post, but, at this point, I am not aware of any overly competent attys working on the big lie. There may be some on the tax case, Marcy would probably know.

  7. Tom in AZ says:

    Hi all. Despite not having posted or logged in for awhile, I’m still around every other day or so. We as a country are in a world of shit and this place is a wonder, helping us wade through it all. I’m sorry to miss the thread on Charlie Watts live, the memories were great and brought back a few I lived.
    Anyway, I appreciate all you do and most of the posters. ;)

  8. harpie says:

    [Repeating and picking up from this comment the other day:]

    3:10 AM · Jul 21, 2021
    This thread directly ties the Jan 5 rally with the Lower West Terrace violence, including the assault of Michael Fanone. [link]

    Links to: Capitol Hunters THREAD
    10:23 PM · Jul 20, 2021

    #SeditionHunters – events in DC required planning. Cindy Chafian organized the fiery Jan 5 rally where Ali Alexander led the crowd in “Victory or Death!” On Jan 6 she marched up the West Capitol steps with bullhorn & entourage and cheered during the assault on Officer Fanone. 1/ [THREAD]

    • harpie says:

      NEW and continuing from that CH thread:

      8:33 PM · Aug 28, 2021

      Replying to @capitolhunters #SeditionHunters – On Jan 6, rally organizer Cindy Chafian & husband Scott rushed to the Capitol in golf carts. (Overheard: ‘We’re inside. They need help, let’s go!’) Turns out, the “help” was…Nathan Hughes, who ran into the tunnel & helped drag Officer Fanone into the mob. 33/ [THREAD]

      • harpie says:

        Scroll down 3 or 4 tweets from that link to get to tweet /33, which is the beginning of the NEW material.

        This finding ties VIPs Cindy and Scott Chafian DIRECTLY to the violence at the Capitol.

        They knew the Capitol was under attack,
        raced to get there,
        forced their way through the crowd,
        watched the mob attack police —
        and brought someone to participate in that attack. 34/ [THREAD]

      • harpie says:

        January 5 Chafian rally:

        Background: Hughes is tied to the Chafians through buddy Matt Couch, head of the America First media group, an MC at Cindy’s Jan 5 DC rally. Both Hughes & Couch are from Bentonville, AR. Here they are at a 2020 Trump rally in Georgia; both were in DC for Nov, Dec. rallies too 36/ […]

        Though he [HUGHES] was in Cindy Chafian’s VIP tent on the 5th, seems he didn’t make the cut on Jan 6 – instead lined up for the 1st row behind the VIPs. […] /38

      • harpie says:

        At 5:12 PM on Jan 6, when the Capitol attack was effectively over, Hughes tweeted “‘Mostly Peaceful’ protest”. Then a bit later: “We ain’t done”.

        By Jan 7 he’s agreeing with Robert Patrick Lewis of 1AP [1st Amendment Praetorians] , calling “Patriots” to the next “part of the mission”. 47/ [screenshots]

        This might be getting us back to MARCY’s post from 8/25/21 about OK’s on 1/10/20 believing Trump had invoked the Insurrection Act:

      • Eureka says:

        This Raw Story piece seems to have some additional info/links (they do credit @capitolhunters with the initial finding):

        ‘We ain’t done’: This Arkansas man connected to key pro-Trump organizers was present at assault of Officer Fanone
        Jordan Green, Staff Reporter
        August 29, 2021

  9. Eureka says:

    Now for some Q kicks or Fun with Doug.

    Marcy RT’d K2theSky’s thread locating Trump-pandering/bus-funding Doug Mastriano on the East Plaza, post-steps breach:

    “We found @SenMastriano on the East Plaza AFTER the steps were breached. Not surprisingly, he didn’t leave right away, he stayed. I wonder who did he hugged? Watch👇 🎥 [yt link] #SeditionHunters @DougMastriano @MasaSpalatin @CoryCullington @capitolhunters 1/ [screenshots]”
    12:13 PM · Aug 29, 2021

    Capitol Hunters did a wrap-around thread, following Mastriano on a tour of the breaches:


    They incorporate his Q-connections as well:

    “The Q link adds a twist to Mastriano, who’s usually tied to militant Christian nationalism, often posing with the “Tree of Heaven” flag seen all over the Capitol on Jan 6. But Jan 6 teaches us that very different flavors of extremism can come together. 11/ [link]”

    Errrrrrrrrrrrrrrrrt. Stop that golf cart! “Tree of Heaven”, you say?

    • Eureka says:

      The akshual “tree of heaven” is an invasive species which first arrived from Asia to the US in the Philadelphia area in the late 1700s; it was re-introduced on the west coast in the 1850s and is pretty much everywhere now.

      The tree of heaven is the preferred host for the spotted lanternfly (SLF).

      Fast-forward a couple centuries plus and the similarly invasive — with a crop-destroying twist — SLF shows up in a similar area (Berks Co. PA, 2014). The SLF has made its way to several northeast/Mid-Atlantic states, and continues sap-sucking its way inland, upland, and down the coast. It wrecks stonefruit trees, grapes, hops [insert Ben Franklin quote re: beer] — dozens of plants and the list is growing as we learn more. (They destroyed my evening primrose; the birds usually eat from those dried seed pods in the winter … cascading ecological consequences.)

      TL;DW (I wish I could follow this story to its Qly consequences) it appears that Mastriano is promulgating the destruction of America, land that we love.

      [and sidebar]

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