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FBI Informants Could Complicate Jan. 6, 2021 Prosecutions

The Justice Department has expanded its investigation into the Jan. 6 Capitol riot and is gearing up for summer trials in some of the most serious cases brought so far, as some cracks in prosecutors’ strategies have started to emerge, reports the Wall Street Journal. A judge has issued the first full acquittal among hundreds of cases, of a man who said he believed police officers ushered him into the building, and acquitted another man of the more serious charge he faced. In both cases, U.S. District Judge Trevor McFadden, an appointee of former President Trump, said the defendants didn’t engage in the violence and destruction at the heart of many of the Justice Department’s cases.

Another possibly complicating factor for the government: At least a half-dozen FBI informants were in the crowd at the U.S. Capitol on Jan. 6, 2021, although none of them appear to have been sent there by the bureau to engage in or encourage violence. Defense lawyers are pressing the FBI for information about those informants. The informants could be an issue as prosecutors prepare for their first trial in July on sedition and other charges against members of the right-wing militia Oath Keepers and a potential August trial of members of the Proud Boys on conspiracy and obstruction charges. The presence of informants could open the door for defense attorneys to argue their clients were coerced into violence. Prosecutors have issued subpoenas for information about the planning of the rally preceding the attack. Prosecutors had considered pursuing that line of inquiry soon after the riot but decided to forgo it over First Amendment concerns. To bring a case against people involved in events before the riot, prosecutors would likely need to tie them directly to the violence or prove that their speech was directed toward inciting violence, experts said. “Any time speech is implicated in the conduct that forms the basis for a criminal charge, it’s a big challenge for prosecutors,” said David Deitch, a former Justice Department official with experience in terrorism cases.


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