If there is one image from Jan. 6th that will remain indelible with the day, it is the “QAnon Shaman.” Bare chested and wearing an animal headdress, horns and red-white-and-blue face paint, Jake Angeli Chansley is to the Capitol riot what Rosie the Riveter was to World War II. Howling and “chanting an unintelligible mantra” on the Senate floor, he is the embodiment of the unhinged rage that led to one of the most disgraceful attacks on our constitutional process in history.
However, the newly released Fox footage from that day raises serious questions over the prosecution and punishment of Chansley. The videotapes aired on Tucker Carlson this week show Chansley being escorted by officers through the Capitol. Two officers appear to not only guide him to the floor but actually appear to be trying to open locked doors for him. At one point, Chansley is shown walking unimpeded through a large number of armed officers with his four-foot flag-draped spear and horned Viking helmet on his way to the Senate floor.
It is otherworldly footage. While I admit that I approach these stories from the perspective of a long-standing criminal defense attorney, I would be outraged if I was unable to see such evidence before a plea or sentencing. At no point in the videotapes does Chansley appear violent or threatening. Indeed, he appears to thank the officers for their guidance and assistance. On the Senate floor, Chansley actually gave a prayer to thank the officers agreed “to allow us into the building.”
Before addressing the legal implications of this footage, one thing should be clear. The public should have been given access to this footage long ago and the Jan. 6th Committee withheld important evidence on what occurred inside the Capitol on that day.
While it is understandable that many would object to Carlson being given an exclusive in the initial release, many in the media are denouncing the release of the footage to the public at all. The press and pundits are now opposing greater transparency in resisting any contradiction of the narrative put forward by the Jan. 6th Committee. Indeed, MSNBC’s Jason Johnson angrily objected that this is “federal evidence” — ignoring that it is evidence that was denied to criminal defendants.
This is not just material that the public should be able to see, it was potential evidence in criminal cases like that of the QAnon Shaman.
When the footage aired, I wrote a column raising the question of whether this evidence was known to or shared with Chansley’s defense. After all, he was portrayed as a violent offender by the Justice Department at his sentencing.
It now appears that the answer is no. I spoke with Chansley’s new counsel, Bill Shipley, and confirmed that defense counsel did not have this material.
In the hearing, federal prosecutor Kimberly Paschall played videos showing Chansley yelling along with the crowd and insisted “that is not peaceful.”
That portrayal of Chansley would have been more difficult to maintain if the Court was allowed to see images of Chansley casually walking through a door of the Capitol with hundreds of other protesters and then being escorted by officers through the Capitol. At no point is he violent and at no point is he shown destroying evidence. Instead, he dutifully follows the officers who facilitate his going eventually to the unoccupied Senate floor.
We all knew that Chansley was treated more harshly because of his visibility. It was his costume, not his conduct, that seemed to drive the sentencing. In the hearing, Judge Royce Lamberth noted, “He made himself the image of the riot, didn’t he? For good or bad, he made himself the very image of this whole event.”
Lamberth hit Chansley with a heavy 41-month sentence for “obstructing a federal proceeding.”
However, the QAnon Shaman was led through the Capitol by officers. Defense counsel could have noted that his “obstruction” in going to an unoccupied Senate floor was facilitated by officers. While the police were clearly trying to deescalate the situation after the Capitol was breached, this is evidence of how Chansley came to the Senate. Indeed, his interaction with officers could have impacted how he viewed the gravity of his conduct. It certainly would have been material to the court in sentencing the conduct.
In his rambling sentencing statement to the court, Chansley apologized for “a lot of bad juju that I never meant to create.”
I have great respect for Judge Lamberth, who has always shown an admirable resistance to public pressure in high profile cases. I cannot imagine that Lamberth would not have found this footage material and frankly alarming.
At first blush, this would appear a clear “Brady violation” when a prosecutor fails to provide a defendant with any evidence that is favorable or exculpatory to his case. Like most things in Chansley’s life, it is a bit more complex than it would seem.
First, Chansley quickly pleaded guilty to the charge. This may have been due in part to the draconian treatment that he received by the Justice Department, which insisted on keeping him in solitary confinement with no apparent justification. The result is that he moved rapidly to sentencing without significant discovery in his case.
Second, the footage was in the possession of the legislative branch so the Justice Department could claim that it was not required to produce it. Indeed, the prosecution may have been entirely unaware of the footage.
Third, Chansley waived an appeal of the plea agreement and is now weeks away from release. The case is practically closed.
It is not clear, however, if Judge Lamberth will find the failure to disclose this evidence troubling and worthy of inquiry. None of this means that Chansley should not have been given jail time. Indeed, it is appropriate to sentence rioters to greater than average time due to the assault on our constitutional process.
Yet, it is hard to believe that Judge Lamberth would have given 41 months to a nonviolent, first offender who was led through the Capitol by police officers to the floor. This was a Navy veteran who pleaded guilty to the crime.
The role of Congress in withholding this footage is disgraceful and wrong. The Congress and the January 6th Committee knew of this footage and its relevance to a pending criminal case. Yet, they refused to make it public. Instead, the January 6th Committee hired a former ABC producer to put on a made-for-television production of highly edited images for public consumption. Countervailing evidence or images were consistently excluded and witnesses appeared as virtual props to support high-quality video packages.
Even The New York Times admitted the narrative was meant to “recast the midterm message” and “give [Democrats] a platform for making a broader case about why they deserve to stay in power.”
The image of the QAnon Shaman being escorted through the Capitol by police officers is hardly the image that they wanted to show the public. So Committee members and counsel buried footage that was clearly relevant to literally hundreds of people facing criminal sentencing across the country. They did this while repeatedly referencing those cases in hearings as upholding the rule of law.
I hold little sympathy for Chansley or the others arrested on that day. I was highly critical of President Donald Trump’s remarks before the riot.
However, it is hard to see this withheld evidence and not conclude that the Qanon Shaman got the shaft on his sentencing.