When pro-Trump rioters attacked the Capitol on Jan. 6, lawmakers and Vice President Mike Pence fled for safety. Until recently, the Justice Department contended that Vice President-elect Kamala Harris was among them.
But DOJ is now moving to correct the record, acknowledging in court that Harris was in fact away from the Capitol during the riot and only returned later to cast the key votes that certified her own ascension to the vice presidency.
“[T]he government incorrectly stated that Vice President-Elect Harris was present in the U.S. Capitol at the time of the attack,” prosecutors wrote in a court filing in one Jan. 6 case Tuesday. “In fact, Vice President-Elect Harris was not present at that particular time, though she was present earlier in the day and was present later that day."
Another prosecutor disclosed the mistake in court last week at a sentencing hearing for Eric Torrens. After Chief Judge Beryl Howell said Torrens’ actions contributed to the disorder that prompted Pence and Harris to be evacuated from the Senate chamber, Assistant U.S. Attorney Jamie Carter chimed in to say that the government had “recently learned” that Harris was not actually present when the Capitol was breached.
Although the mistake may have limited legal significance, it’s an indication that even some fundamental facts about the insurrection remain murky — such as, where was the vice president-elect and why did she leave the Capitol?
Harris is one of the two Secret Service protectees who was in the building that day. Pence was the other. Many of the 650-plus defendants arrested for breaching the Capitol are facing charges that they illegally entered a “restricted” area where someone under Secret Service protection was visiting. But because Pence remained in the Capitol complex for the duration of the attack, there’s likely to be minimal impact on the criminal cases.
A source familiar with Harris’ movements on Jan. 6 confirmed that she exited the Capitol after a Senate Intelligence Committee briefing that morning, a detail that was reported in some news accounts within days of the attack.
The source said she had always been planning to leave the building at that time. And associates of Harris, who has faced many personal threats against her over her career, said she has a history of declining to share her whereabouts when asked, often citing safety concerns.
It’s unclear why DOJ included the erroneous information in the first place and continued to do so for months. Published reports as early as mid-January, including interviews that Harris gave as she prepared to make history as the first female vice president, indicated she was not present in the Capitol during the insurrection.
The Washington Post reported on Jan. 14 that Harris “had received an intelligence briefing in the morning and had not returned to the Senate before rioters broke in. She was kept away from the Capitol until the facility was secured.”
And in a Jan. 16 interview with the LA Times, Harris “declined, for security reasons, to say where she was during the Jan. 6 storming of the Capitol by a mob of Trump supporters.”
“She said she had been at the Capitol earlier that day for a meeting of the Senate Intelligence Committee and was working elsewhere in Washington when she was evacuated,” the Times reported. “She said she watched the mob enter the Capitol on television from a secure location, while texting with colleagues who shared their commitment to return to complete the election certification process.”
Yet in a series of charging documents and other court filings, DOJ has cited Harris’ supposed presence as a given and an indication of the disruption caused by the defendants’ actions.
“On January 6, 2021, at approximately 1:00 p.m., Vice President Michael R. Pence, in his constitutional duty as President of the Senate, presided over the Joint Session,” prosecutors wrote in a March filing seeking to keep UCLA student Christian Secor in pretrial detention. “Vice-President-Elect Kamala D. Harris, in her role as a Senator representing the State of California, was also present.”
“At approximately 2:20 p.m., members of the House and Senate (including Vice President Pence and Vice-President Elect Harris)—who had withdrawn to separate chambers to resolve an objection—were evacuated from their respective chambers,” the submission says, although Harris’ office says she wasn’t there at time and was never evacuated. For good measure, the filing repeats the error a third time, saying both Pence and Harris “had remained within the Capitol building throughout” the Jan. 6 unrest.
Some indictments in Jan. 6 cases, such as one returned in February against self-described Proud Boy Nicholas Ochs and friend Nicholas DeCarlo, use identical, inaccurate language about Harris’ presence. Others, like the March indictment of brothers Jonathanpeter and Matthew Klein, put Harris at the early part of the Electoral College counting session but omit the mention of her being evacuated.
A spokesperson for the U.S. Attorney’s Office did not respond to several requests for comment on how the inaccurate description of Harris’ activities made it into numerous court filings.
More recently, prosecutors seem to have stripped down the narrative in their Capitol riot indictments. However, many still contain arguably misleading language about Harris, saying she was “temporarily visiting” the Capitol when defendants breached police lines or disrupted business.
Prosecutors may have learned about the error last month when they were issuing a filing in the case of Capitol riot defendant Guy Reffitt. In that filing, prosecutors said they intended to call a Secret Service agent during Reffitt’s trial “to testify that at the time of the Capitol breach, Secret Service agents were on duty to protect Vice President Mike Pence and his two immediate family members, all of whom were present at the Capitol.”
Prosecutors are asking the judge, Dabney Friedrich, to prevent defense attorneys from asking this agency about sensitive details, such as the “location within the Capitol or its grounds to which the Vice President and his family, or their motorcade, were taken once the riot began.”
Nicholas Smith, a defense attorney for some of the highest-profile Capitol rioters, agreed that prosecutors’ references to Harris’ presence in the Capitol was always a “backstop” to Pence in prosecutors’ charging documents. But he said questions about Pence’s precise location — particularly as he was evacuated from the Senate and into the underground area of the Capitol — could become significant now that Harris’ absence has been confirmed.
“This might turn on where Pence went — a question [the government] is trying to preclude cross-examination on,” Smith said. “If Pence was in a garage under the Capitol, [the government] has a strong argument that's still the ‘building.’ However, reporting also suggests Pence went right to the underground tunnels. The next question becomes are those tunnels still Capitol ‘grounds’ even if not the ‘building?’”
Randall Eliason, who spent more than a decade in the U.S. Attorney’s Office for Washington D.C. — the office that today is handling the Capitol Riot cases — said the mistake doesn’t fundamentally undercut charges because Pence’s presence would trigger the same potential violations.
Eliason also said Harris’ anticipated return to the Capitol is another basis for prosecution, although the existing charges don’t describe the situation quite that way.
“Absolute worst case for the government, if the defense makes a stink and a judge buys it, is that the reference to Harris is stricken from the indictment and the case proceeds,” said the former prosecutor, who teaches at George Washington University’s law school. “Frankly, I don’t think it should even come to that, at least in most cases. The fact that she was expected to be there should be enough.”
Prosecutors have several options to address the erroneous filings. They could leave the language about Harris in place, although that could open up some opportunities for defense attorneys to highlight the error to impugn the cases against their clients.
Prosecutors could also file “superseding” indictments that drop that erroneous language, but that would require presenting more evidence to a grand jury. They could also ask judges to strike the language, although it’s unclear if judges would agree without the consent of defendants.
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