The Real Danger To Democracy

Dan O’Donnell reflects on the revelation that the Department of Justice has withheld exculpatory evidence from January 6th defendants.


March 10, 2023

Perspective By Dan O’Donnell


This may come as a surprise to some, but democracy didn’t die on January 6th.  Didn’t even come close.  America never teetered on the brink of collapse, and the continued operation of its government was never endangered by the guy in the Viking horns.  Ironically, though, his plight brings this nation closer to ruin than anything he or anyone else did in the Capitol. 

To be sure, many of them rioted, assaulted police officers, and brought incalculable shame to themselves and the cause of free, fair elections for which they claimed to be fighting.  They committed crimes, serious ones, and they deserved to be punished to the fullest extent of the law.

But they also had a right, as all Americans do, to defend themselves in court and Capitol surveillance video broadcast this week on FOX News’ “Tucker Carlson Tonight” strongly suggests that they were willfully denied this right.

In one such video, the guy in the Viking horns (real name: Jacob Chansley but better known as “QAnon Shaman”) is seen calmly walking inside the Capitol as a handful of officers escort him and then let him into the Senate chamber.  As a result of this, Chansley could reasonably conclude that the officers were allowing him to demonstrate as he pleased inside the Capitol since they even stood by and did nothing as he ranted over a bullhorn for upwards of a half hour.

The surveillance video demonstrates that Chansley reasonably relied on an interpretation of criminal law provided by these officers, allowing him to raise what is known as a “reasonable reliance” defense against the charge of obstructing an official proceeding for which he was eventually convicted and sentenced to four years in prison.

Chansley, though, was never able to present this defense because the Department of Justice never once provided him with the surveillance video that could have proven his innocence.

“Had you seen that clearly exculpatory tape of your client at trial?” Carlson asked Chansley’s former attorney Albert Watkins on Wednesday night.

“No,” Watkins flatly answered.  “The government knew that Jake walked around with all of these police officers.  They had that video footage. I didn’t get it, it wasn’t disclosed to me, it wasn’t provided to me.  I requested it. 

“I filed the requisite pleadings for it, and whether I did or not, they had a duty, an absolute duty, with zero discretion, to provide it to me so that I could share it with my client. I never got it.”

Withholding such exculpatory evidence against Chansley—and likely many more January 6th defendants—is a severe violation of their due process rights.  In 1963, the Supreme Court ruled in Brady v. Maryland that prosecutors have an absolute duty to share with the accused any evidence that is “material either to guilt or to punishment.”

Since Chansley was charged with and eventually pleaded guilty to “knowingly entering or remaining in any restricted building or grounds without lawful authority,” video showing as many as nine police officers in close proximity to him but never once attempting to stop him from marching around the Capitol would tend to exonerate him as it would show that he had a reasonable belief that he did in fact have lawful authority to enter and remain in the Capitol.

Denying his attorney’s request for this evidence is a clear and apparently intentional violation of what is known as the Brady Rule and should result in Chansley’s conviction being vacated.  If, as reasonable minds can and should conclude, dozens and perhaps hundreds of other January 6th defendants were also denied access to surveillance video that could exonerate them, then their convictions should be overturned as well.

If they have been behind bars for more than 26 months—first held without bail and then sentenced to excessive prison terms—without ever being granted a fair opportunity to defend themselves, then this would represent the real threat to America, not anything they did on January 6th

“Society wins not only when the guilty are convicted,” the Court noted in Brady, “but when criminal trials are fair.”

Society loses—and liberty, justice and, yes, democracy itself are imperiled—when criminal trials aren’t just unfair but deliberately and maliciously rigged to produce a predetermined outcome.  If the American government is intentionally depriving American citizens—even the most despised and politically toxic of them—of their liberty without due process of law, then the very foundation of American justice is shaken.        

Without justice, without the protection of all American citizens (even the hated ones) from unjust detention by their own government, then democracy really is in jeopardy and American liberty itself might actually be dying.