Attorney General Garland, in the wake of the disclosures of footage from government cameras showing the “QAnon Shaman,” Jacob Chansley, being guided through the Capitol by uniformed police on January 6, 2021, has an obligation to bring, if he hasn’t done so already, the evidence to the attention of Chansley’s lawyers and the court.

That is the opinion of one of America’s leading defense lawyers, Harvey Silverglate of Boston. “It is the legal obligation of the attorney general,” he told the Sun in an interview this morning, to furnish all material footage from the January 6 riot to those charged for their actions that day. 

That obligation was ordained by the Supreme Court on several occasions and was insisted upon by Mr. Silverglate, who himself is representing President Trump’s attorney, John Eastman, in the criminal probe in Georgia. Nearly 1,000 persons have been charged in connection with the January 6 riot.

It is unclear at the moment what tapes were seen by Chansley, whose lawyer could not be reached by presstime. The release of the footage, though, has prompted a flurry of requests for trial delays from J6 defendants. 

Many of these petitions for extension are predicated on the claim that more time is necessary for lawyers to review new information that has come to their attention as a result of Speaker McCarthy’s decision to release the videos.  

A spokesman for Speaker McCarthy told CNN that the footage will be made available to J6 defendants, and that House Republicans are “making accommodations to schedule time for any attorney representing a defendant” to view the relevant clips. Representative Barry Loudermilk promises “access to evidence which may be used to prove” defendants’ “guilt or innocence.”  

Defense lawyers are likely brushing up on the case that articulated the duty of disclosure, Brady v. Maryland. That’s because the tapes from the government cameras, broadcast by Tucker Carlson on his Fox News show, had been in the possession of the government that has been pursuing criminal charges in the wake of the riot.

The tapes — they unspool more than 41,000 hours — appear to add fresh details of what happened that day at the Capitol. In the process, they could complicate, delay, or even upend entirely prosecutorial efforts against Chansley and, conceivably, hundreds of others. They were supplied by Speaker McCarthy to Fox News’s Tucker Carlson. 

The chief of the Capitol Police, Thomas Manger, denounced in a letter the “offensive and misleading conclusions” with which Mr. Carlson presented what the anchor termed “peaceful chaos.” Mr. Manger contended that the “commentary fails to provide context about the chaos and violence that happened before or during these less tense moments.” 

Speaker McConnell brandished that letter as he said “I want to associate myself entirely with the opinion of the chief and the Capitol Police about what happened on January 6.” He called Fox News’s depiction a “mistake.” Senator Tillis called Mr. Carlson’s editorializing “bullshit.”  

The footage captures Chansley, whom a federal judge labeled the “epitome of the riot,” strolling through the Capitol in the company of two police officers, who do not appear to be attempting to detain him. At another point, he is seen walking by a clutch of officers, who let him pass.  

Prosecutors told a different story, arguing in a court filing that Chansley “stalked the hallowed halls of the building, riling up other members of the mob with his screaming obscenities.” The complaint describes him as “dressed in horns, a bearskin headdress, red, white and blue face paint, shirtless, and tan pants,” and carrying “a spear, approximately six feet in length.” 

Chansley yelled expletives and labeled Vice President Pence a “traitor.” He admitted to leaving a note on the president of the Senate’s desk that read “It’s Only A Matter of Time. Justice Is Coming!” Prosecutors have cited Chansley’s behavior for the proposition that the “intent of the Capitol rioters was to capture and assassinate elected officials in the United States government.”

That judge hearing the case, Royce Lamberth, sided with the prosecutors, noting that what Chansley did “was terrible.” Allowing that Chansley “didn’t slug anybody,” he told Chansley that “what you did here was actually obstruct the functioning of the whole government. It’s a serious crime.”

Chansley cut a deal, pleading guilty to one count of obstruction of an official proceeding, and was sentenced to 41 months in jail, one of the stiffer sentences handed down in connection with the riot. Chansley has since changed his lawyers, who now plan to argue that his guilty plea was preceded by ineffective assistance of counsel. 

Mr. Silverglate predicts that if Chansley has not seen the tapes, an appeal to vacate the pleas is likely to include the claim that the government withheld evidence that could have exculpated Chansley, or at least been relevant — “material” is the legal standard — show him walking alongside police officers, not confronting them.

It is difficult to speculate what a jury might have done had it had a chance to see such a tape, or whether Chansley would have pleaded had his lawyers had access to the tapes. To Mr. Silverglate’s eyes, Chansley was “essentially being shown around” and was caught up in a “group prosecution.” 

 If the government possessed these tapes and did not share them with Chansley or similarly situated defendants, it risks running afoul of Brady. The Supreme Court found in 1963 that a prosecutor’s suppression of evidence in a murder case against John Brady — his co-defendant had confessed to the crime — amounted to a violation of the Constitution’s Due Process Clause. 

The 7-to-2 opinion penned by Justice William Douglas held that the “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

Mr. Silverglate explains that it does not matter whether the prosecuting attorney who handled Chansley’s case was himself in possession of the footage. The very fact that the tapes were held by the government imposes a duty to bring “Brady evidence” to the court and the accused as soon as any member of the government became aware of its existence.

To prove a Brady violation, a defendant must convince the court of three things. First, the evidence in question must be exculpatory in some fashion. Second, it has to have been suppressed by the state. It does not matter whether that suppression was willful or inadvertent. 

Finally, that suppression must, in the Supreme Court’s parlance, “affect the outcome of the trial” or “undermine confidence in the verdict.” Were a Brady violation found, it could lead to a new trial or dismissal of charges altogether. The burden of disclosure rests on the prosecutor to step forward, not the defendant to ask.  

Mr. Silverglate contends that the video at issue in Chansley’s case is  a particularly potent form of “primary evidence.” As he puts it, the “thing about film is that witnesses lie, but film doesn’t lie.” When asked if the suppression of this footage would warrant tossing Chansley’s conviction, he replied with one word: “Yes.”

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This story has been updated from the bulldog.