“The events of January 6 were an attack on the foundation of our democracy,” Faruqui wrote. “But this does not relieve the Department of Justice from following its own guidelines, written to preserve the very same democracy.”
Shroyer was arrested this week on charges of trespassing and disorderly conduct on the Capitol grounds. Shroyer, prosecutors say, violated an agreement not to engage in such behavior that he signed after being removed from a 2019 impeachment hearing for heckling a Democratic lawmaker.
On the day of the riots, he marched with a crowd toward the Capitol shouting, “We aren’t going to accept it!” and later appeared on the building’s steps, prosecutors allege in court records.
Several people charged in the Capitol riot have described themselves as members of the press, but prosecutors have argued in the past that there is no evidence those defendants engaged in journalism. The government did not explain whether it concluded that Shroyer was not a member of the media.
Shroyer hosts a talk show on Infowars, which is banned by major social media platforms for promoting conspiracy theories. Like founder Alex Jones, he has falsely accused a pizza restaurant in Northwest Washington of harboring pedophiles and the parents of children killed in the Sandy Hook school shooting of lying.
Justice Department guidelines require approval from the attorney general to investigate or charge a member of the news media with a crime, to ensure that law enforcement does not impinge upon freedom of the press. Those guidelines were recently strengthened after the Justice Department revealed that under President Donald Trump, records were secretly subpoenaed from several news organizations.
Even if he were a member of the media, Faruqui said, Shroyer’s actions constituted probable cause that he committed a crime. But, he wrote, “the Department of Justice appears to believe that it is the sole enforcer of its regulations. That leaves the court to wonder who watches the watchmen.”
Prosecutors note that Jones and Shroyer both spoke at rallies in advance of the riot, repeating the false claim that the 2020 election was stolen. In a video posted Jan. 5, Shroyer asks, “Are we just going to sit here and become activists for [four] years or are [we] going to actually do something about this?”
In a letter to the court, prosecutors say guidelines protecting the media have been “scrupulously followed.” But the government said the Justice Department is not required to detail that process for the court.
“Such inquiries could risk impeding frank and thoughtful internal deliberations within the Department about how best to ensure compliance with these enhanced protections for Members of the News Media,” wrote John Crabb, who leads the Criminal Division of the U.S. attorney’s office in D.C.
Faruqui said that response “misses the mark.” While conceding that “the Department of Justice retains the right to do what it wants with these regulations,” the judge noted that prosecutors “volunteered such information in the past without any demonstrable harm to its own deliberative process.”