A Jan. 6 defendant has filed a motion to dismiss the eight-count criminal case against him on the grounds of selective prosecution for his role as a journalist covering events at the Capitol.
William Pope, 38, of Topeka, Kansas, filed a flurry of other pretrial motions on May 10 and 13 asking for a change of venue, a ban on federal prosecutors using “corrupted exhibits” in his trial, dismissal of the civil disturbance and obstruction of Congress felonies charged against him, an order to compel identification of more than 200 police officer material witnesses, and an order to allow video and/or audio broadcast of his trial, among others.
“Since I was reporting on events leading up to January 6 on my website, and since I was reporting live to my journalism Facebook page on the way to the Capitol, and since I was observing events that I intended to write about while at the Capitol, and since I took photographs of events at the Capitol to use in an article for my website, my actions on January 6 clearly fell within the parameters of news-gathering,” Mr. Pope wrote in a 10-page motion.
Mr. Pope, publisher of the news site Free State Kansas, said the Department of Justice has been aware of his status as a journalist since Jan. 10, 2021.
“Despite this, the government did not give my actions on January 6 the benefit of the doubt, as they did with other journalists who entered the Capitol to cover events,” he wrote, “and instead chose to seize my journalism data and arrest me.”
Federal prosecutors charged Mr. Pope with civil disorder, corruptly obstructing an official proceeding, entering and remaining in a restricted building or grounds, disorderly and disruptive conduct in a restricted building or grounds, impeding ingress or egress in a restricted building or grounds, disorderly conduct in a Capitol building, impeding passage through the Capitol grounds or buildings, and parading, demonstrating or picketing in a Capitol building. He faces a July 22 trial.
Mr. Pope said that on Jan. 6, he posted updates to his Facebook page that identified him as a journalist. He brought a camera and laptop to Washington with the intention of writing a story summarizing the day, but he backed away from it.
“However, the stunning reaction from the DOJ, with threats to prosecute all who were on Capitol grounds, chilled my First Amendment press activity, and I chose not to publish,” he said.
Mr. Pope cited a July 2021 memo from U.S. Attorney General Merrick Garland that said a balancing test must be used to prevent “compulsory production of records belonging to members of the press.” News media should not be targeted by investigations when their actions were within the bounds of news-gathering, Garland said, according to Mr. Pope.
Because the Garland memo is now in effect, “the government has an obligation [to] dismiss the charges against me that fail this balancing test, and all information seized from me should be returned and suppressed,” he wrote.
Mr. Pope cited Stephen Ethan Horn, 25, and Stephen Michael Baker, 64, as two conservative or libertarian-leaning journalists from North Carolina who were charged by the DOJ for being in the Capitol on Jan. 6. Mr. Horn raised selective prosecution as a defense in his case but was found guilty by a jury of four misdemeanor crimes. Mr. Baker was arrested on four misdemeanor counts in March, and his case is ongoing.
“The Court should consider the fact that many left-leaning journalists from left-leaning news outlets have been completely ignored by government prosecutors,” Mr. Pope said. “In fact, the so-called sedition hunters have identified more than 800 journalists who were present on January 6, including more than 120 who were inside the Capitol.”
Mr. Pope cited an independent video journalist and journalists from The New York Times and Los Angeles Times as examples of left-leaning news media who entered the Capitol but were not charged with crimes.
Bodycam Footage Missing
Mr. Pope said he was notified by the FBI that bodycam footage from the Topeka Police Department of his February 2021 arrest had not been preserved. He also cited problems with video files released by prosecutors from his brother Michael’s Jan. 6 trial.“The loss of bodycam evidence and the government’s use of degraded and corrupted exhibits in January 6 trials is alarming,” he said. “To prevent the government from doing this in my own case, I am moving the court to compel the government to identify all evidence that has been altered, destroyed, mutilated, concealed, degraded, or corrupted and to prohibit the government from using such evidence in my trial.”
The DOJ has not yet responded to Mr. Pope’s long list of pretrial motions.
Mr. Pope has asked Judge Contreras to delay his July 22 trial date, citing, in part, the uncertainty surrounding one of his charges—obstruction of an official proceeding, a 20-year felony. The U.S. Supreme Court heard oral arguments on April 16 in a challenge to the use of a financial fraud statute to prosecute Jan. 6 defendants. A ruling is expected by the end of June.
