January 6, 2021: Saving the Truth from the Whitewash

In early 2021, CNN reached out to us with a novel, and alarming, concern. A journalist was covering one of the first detention hearings for a participant in the January 6, 2021 siege on the U.S. Capitol. While listening on an audio line to the proceedings taking place in West Virginia – in a COVID-restricted courthouse – the journalist heard the parties discuss the video evidence that the prosecutor had offered up to support detaining the defendant prior to trial. According to the prosecutors, footage from Officer Brian Sicknick’s body-worn camera showed defendant George Tanios spraying the officer – who died the following day – with bear spray. But with audio-only access to the hearing, the public and the press couldn’t see what the judge was seeing.

This was the first of many, many hearings where the Department of Justice relied on dramatic and violent videos of a defendant’s every move on the Capitol grounds. In arrest after arrest, these videos formed the core of the government’s argument to keep the defendant detained prior to trial.

Compounding the lack of contemporaneous access, the video files were not being lodged on the court’s publicly accessible electronic docket system, PACER. At the time, the government – including the courts – had no technological capability to put this increasingly massive trove of evidence on the public docket. We were all beginning to realize that this was a serious problem – for due process and for transparency.

This lack of access also created a huge hole in journalists’ reporting. National news media were exploring and explaining new perspectives on the incursions of different parts of the Capitol – the “Crypt,” House Speaker Nancy Pelosi’s office, and a vestibule to the House chamber where members of Congress were hiding. Local newsrooms wanted the footage to report on rioters from their coverage areas. We had to make a plan to help the clients and the country.

At CNN’s initiative, we brought together a coalition of 16 news organizations to petition the federal court in Washington, D.C., where defendants and evidence were being moved for the prosecutions, for copies of the videos. We began with the case against Tanios, then came a few more – Joseph Padilla of Tennessee, also charged with assaulting officers, who is seen in footage verbally berating officers, and Federico Klein, a former Trump Administration appointee to the State Department accused of fighting a line of police and using a police riot shield to wedge open an entrance for rioters. We eventually sought videos in hundreds more cases. But with the courthouses still largely inaccessible, we had logistics issues even on top of the volume of video.

To try to bring order to what had become a crushingly cumbersome process, and to try to economize on our clients’ fees, we asked Beryl A. Howell, then-Chief Judge of the D.C. federal district court, to enter Standing Order No. 21-28, setting procedures for news organizations to file applications for copies of video evidence in each Capitol Riot case, and ordering the government to provide the evidence to the media and other members of the public. As a result of her order, the government set up access through a drop box called USAfx and provided our firm the credentials so we could supply the videos to the coalition clients.

At that time, our priority was to ensure that for their contemporaneous reporting, news outlets had real-time access to photos and videos presented in open court. As Chief Judge Howell explained when ordering video exhibits released in one case, “[t]he public has an interest in understanding the conduct underlying the charges in these cases, as well as the government’s prosecutorial decision-making both in bringing criminal charges and resolving these charges by entering into plea agreements with defendants.” United States v. Torrens, 2021 U.S. Dist. LEXIS 174997, *17 (D.D.C. Sept. 15, 2021). All told, thousands of pieces of audio-visual evidence, comprising three terabytes of data, were made available to the news media through USAfx.

In some of the cases, we faced no opposition, and the videos exhibits were posted promptly. In others, defendants or the government objected, raising arguments about prejudice, privacy, and/or security concerns. The coalition of newsrooms prevailed almost every time – in one memorable instance, we were invited to participate in a virtual hearing with just 15 minutes’ notice, and won release of those videos. Another tough access skirmish concerned video evidence captured on Capitol building surveillance cameras, with fierce opposition coming from the Capitol Police Department. But thanks to detailed documentation of the pervasiveness of the surveillance videos that we submitted, the press coalition prevailed. See Torrens, 2021 U.S. Dist. LEXIS 174997.

We also pursued a side quest in 2023: a coalition FOIA action for all of the Capitol CCTV footage from January 6, which Republican congressional leaders had ordered the Capitol Police to give them, and which they then selectively shared with media figures who would advance their agenda before ultimately uploading the entire trove of video to a website fittingly called “Rumble.” Advance Publications v. Executive Office for U.S. Attorneys, 23-cv-1014 (D.D.C.).

As a result of this work, a large portion of the riot videos you saw on the news during the Capitol Riot prosecutions came from this patient and steady coalition effort.

Fast forward to 2025. When President Trump returned to the Oval Office, he promptly fulfilled his campaign promise and pardoned the rioters. The White House repainted the convictions of defendants who attacked police officers as a “grave national injustice,” and rioters were sent home with clean records. Prosecutors working on these cases were forced to pack their bags and find other jobs.

Concerned that the Trump Administration might not maintain the USAfx archive for long, we began to create a backup of the files, and while doing so we discovered that prosecutions were already disappearing from the database. We later found out that an automatic deletion function had been enabled. 

Judges understandably were expressing concern about the pardons and the whitewashing of the criminal convictions in cases where they had worked hard to ensure fair proceedings. “The rewriting of the history of Jan. 6, 2021, is incredibly disturbing,” Judge Howell commented at a sentencing in December 2024. Judge Royce Lamberth wrote in a court filing that he had witnessed “harrowing stories” at Jan. 6 trials, and jurors “know how perilously close we came to letting the peaceful transfer of power, that great cornerstone of the American republican experiment and perhaps our foremost contribution to posterity, slip away from us.”

Watching the White House put out this distorted narrative, and with the files disappearing, our goal shifted. Before, the work for the coalition was about providing contemporaneous access to the evidence. Now, the mission pivoted to preserving history, making sure the truth about January 6 is never capsized in the waves of propaganda.

So we rushed to court in early 2025 seeking enforcement of the Standing Order to stop files from disappearing. A new Chief Judge, James E. Boasberg, issued a minute order requiring the government to restore the missing files and preserve the status quo pending further proceedings. This prompted a discussion with our clients, and motivated the DOJ to participate, on how to best make sure a permanent video record remained accessible. The negotiations resulted in the government providing us with a hard drive containing that whopping three terabytes of data. Additionally, after prodding from Judge Amit P. Mehta and further negotiations in the CCTV FOIA case, we obtained a hard drive of 12 terabytes of unedited surveillance footage.

While wrenching the files out of the government, we also began a dialog with the Internet Archive, which hosts the Wayback Machine (and the very best collection of bootleg Dead-show tapes). Appreciating the need for a home for these historical artifacts, on the five-year anniversary of the riots, the Internet Archive began posting the Capitol riot case evidence, which are available here. NPR has also created a video archive that users can navigate in a narrative form. These records also support real-time reporting on this administration, including the advancement of Jared Wise, a former defendant now serving as a senior advisor for the Department of Justice.

Throughout this process, we have had various strange bedfellows across the aisle and across the courtroom. The press coalition unrelentingly carried the water for public and the right to see for themselves what happened on January 6. And when the government no longer recognized this right, we are proud that the Fourth Estate carried that torch.

Chuck Tobin, Maxwell Mishkin, and Lauren Russell of Ballard Spahr LLP’s Washington, D.C. office represent the Press Coalition: Cable News Network, Inc., Advance Publications, Inc., American Broadcasting Companies, Inc. d/b/a ABC News, The Associated Press, Buzzfeed, Inc. d/b/a BuzzFeed News, CBS Broadcasting Inc. o/b/o CBS News, Dow Jones & Company, Inc., publisher of The Wall Street Journal, The E.W. Scripps Company, Gannett Co., Inc., Gray Media Group, Inc., Los Angeles Times Communications LLC, publisher of The Los Angeles Times, National Public Radio, Inc., NBCUniversal Media, LLC d/b/a NBC News, The New York Times Company, POLITICO LLC, Pro Publica, Inc., Tegna, Inc., and WP Company LLC, d/b/a The Washington Post.