Background: In this Jan. 6, 2021, file photo, U.S. Capitol Police push back rioters trying to enter the U.S. Capitol in Washington. (AP Photo/Jose Luis Magana, File). Inset: President Donald Trump speaks during a rally protesting the Electoral College certification of Joe Biden as President in Washington, Jan. 6, 2021. (AP Photo/Evan Vucci, File.)
Several current and former officers with the U.S. Capitol Police are asking a federal judge to give them access to grand jury materials from special counsel Jack Smith’s criminal investigation into Donald Trump as they seek to hold the president-elect personally accountable for his role in the violent riots that erupted at the Capitol on Jan. 6, 2021.
In an application filed last week in the U.S. District Court for the District of Columbia, the eight officers asked the court to disclose certain materials obtained through the grand jury investigation for use in their lawsuit against Trump.
The requested materials are necessary because the officers say their information requests are being stonewalled. Such information includes Trump’s communications with “his non-governmental conspirators,” materials relating to the fundraising, planning, and promotion efforts from the Jan. 6, 2021, “Save America Rally,” and materials from some eyewitnesses of the Capitol attack.
The plaintiffs in the case are asking the court to release the materials because they have been unable to secure them through normal channels of discovery from multiple Trump-related organizations and individuals.
In the underlying case, Trump and others are accused of having “conspired to incite an assembled crowd to march upon and enter” the national legislative seat of government that fateful day. The lawsuit is premised on the Ku Klux Klan Act of 1871, a federal law barring mob violence directed at federal officials.
The various plaintiffs allege the defendants are civilly liable for what transpired and seek compensatory damages in the consolidated series of lawsuits. The current and former officers include Conrad Smith, Danny McElroy, Byron Evans, Governor Latson, Melissa Marshall, Michael Fortune, Jason DeRoche, and Reginald Cleveland.
According to the 12-page filing, the release of grand jury material may be the only manner through which the applicants can obtain information vital to their case because several entities and individuals close to Trump have “engaged in deficient discovery.”
For example, applicants claim that in response to a subpoena for “fundraising and coordination efforts,” the Save America PAC produced a single document: the location permit for the Rally.
“After Applicants requested that it run additional search terms or custodians, the PAC maintained it had no further responsive documents despite its role as a fundraising PAC,” the filing states. “Trump Victory and Make America Great Again Committee are also two fundraising PACs that purport to have not a single document responsive to Applicants’ subpoenas. Despite months of efforts on the part of counsel there has been no progress. These assertions defy credulity: Defendant Trump’s campaign entities very publicly fundraised based on the ‘Big Lie’ that Defendant Trump had won the election, or otherwise worked on the false electors scheme, which inflamed sentiments culminating in the January 6 Attack”
Additionally, the officers allege that several individuals involved with Trump, including Rudy Giuliani, Dan Scavino, and Caroline Wren have spent “months or even more than a year” refusing to respond to subpoenas in the civil case.
“There has been no indication that these third parties will respond to the discovery requests,” the filing states. “Therefore, Applicants seek disclosure to prevent the injustice of being denied their crucial documents and testimony.”
The applicants argue that the grand jury material is relevant because their civil case against Trump and the federal criminal case against Trump are “based on substantially the same underlying facts.”
“Disclosure is proper here because Smith v. Trump and the grand jury proceedings in United States v. Trump plainly overlap, as both allege Defendant Trump engaged in unlawful conduct based on the same underlying events,” the applicants wrote in the 12-page filing. “As there is no dispute that the Smith v. Trump is a judicial proceeding, the Court is authorized to direct disclosure upon a showing that there is a connection between the two proceedings.”
Additionally, while the particularized grand jury materials they are seeking would typically be kept confidential, Trump’s reelection last month led to the dismissal of the federal criminal cases he was facing, thereby greatly reducing the need for the grand jury materials to remain secret.
“Considering the dismissal of United States v. Trump, the continuing need for secrecy in the underlying grand jury proceeding is greatly diminished, and the Applicants’ inability to access evidence important to their case establishes the requisite particularized need,” applicants wrote. “Applicants seek the United States’s evidence solely for the purpose of furthering their own substantive case where that information is not otherwise available, and only make this application due to the extraordinary circumstance of the dismissal of United States v. Trump.
