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InfoWars Host’s Motion to Dismiss Jan. 6 Charges Denied, But Lawyer Hints at Future First Amendment Fight

InfoWars host Owen Shroyer appears in a screengrab taken from video provided by a tipster to the FBI.

InfoWars host Owen Shroyer appears in a screengrab taken from video provided by a tipster to the FBI.

An InfoWars host who live-streamed his participation in the Jan. 6 siege at the Capitol has failed in his bid to dismiss the charges against him.

Jonathon Owen Shroyer was among the mob of Donald Trump supporters who swarmed the Capitol on Jan. 6 in an attempt to stop the certification of Joe Biden’s win in the 2020 presidential election. Prosecutors say he led a crowd in a “1776!” chant before stepping over that said “AREA CLOSED.”

In the days leading up to Jan. 6, Shroyer had been among prominent right-wing voices encouraging Trump supporters to protest at the Capitol: according to prosecutors, his face was featured on an InfoWars “Fight For Trump” announcement, and on Jan. 5 he had posted a video of himself in Washington calling on people to “save the Republic!”

He was charged in August with entering and remaining in a restricted building or grounds, disorderly and disruptive conduct in a restricted building or grounds, disorderly conduct in Capitol grounds, and obstructing or impeding passage through or within Capitol grounds..

On Thursday, U.S. District Judge Timothy Kelly denied Shroyer’s motion to dismiss those charges.

Shroyer said that federal prosecutors withheld or omitted information from its arrest warrant affidavit that, if the magistrate judge had seen it, would have led the judge to determine that there was not probable cause to arrest him.

Shroyer had argued that the affidavit was misleading as to the contents of certain videos because it didn’t highlight parts of the video that Shroyer said showed him trying to de-escalate the situation.

Shroyer also accused the DOJ of vindictive and retaliatory prosecution, saying the government was trying to punish him for First Amendment-protected speech.

Kelly, a Trump appointee, did not find Shroyer’s arguments persuasive.

“The government did not truly omit or withhold anything at all,” Kelly said of Shroyer’s arguments about the video submitted in support of the government’s affidavit. “The government provided the magistrate with a link to publicly available video in its entirety. Defense counsel confirmed this, albeit arguing that certain parts of that video should have been specifically excerpted for the magistrate.”

Kelly said that the government’s decision to focus on what it considered to be the important parts of publicly available videos, while providing links to the entire videos themselves, “hardly constitutes an effort to mislead. It is hardly an omission at all.”

Kelly said that even if Shroyer had proven that the government had omitted key parts of the video from the affidavit, it wouldn’t have affected U.S. Magistrate Judge Zia Faruqui’s finding of probable cause.

“Considering the contents of the complaint and the supporting affidavit, along with any allegedly omitted material, there is no doubt in my mind that probable for an arrest existed here,” Kelly said.

He added that any “reasonable magistrate” considering the fact that police used riot control tactics and directed Shroyer’s group away from the Capitol “could conclude that the defendant knew he wasn’t supposed to be there.”

Kelly also said that Shroyer had provided “little, if any, evidence here suggesting vindictiveness” on the part of prosecutors.

Regarding Shroyer’s argument that it wasn’t clear that he was in a restricted area on Capitol grounds, Kelly noted the deferred prosecution agreement in Shroyer’s pending case for disrupting a 2019 House impeachment inquiry hearing. Kelly said the fact that Shroyer signed that agreement “does tend to undercut” his argument that he didn’t know he was on restricted grounds.

At Thursday’s hearing, Shroyer’s attorney Norm Pattis told Kelly that there has been a “significant detour in the case” due to the House committee investigating Jan. 6 and its efforts to hear from people associated with Shroyer.

“We have a proposal from Mr. Shroyer to advance the litigation that might be of interest to the government,” Pattis said.

The House committee investigating the Jan. 6 attack recently subpoenaed InfoWars host Alex Jones. Pattis is representing Jones in his lawsuit against the committee, which was filed in December.

Pattis also indicated that the fight to dismiss the charges wasn’t over, and told Kelly that he intended to file a motion raising a First Amendment argument on Shroyer’s behalf.

“I’m certainly open to that, especially since I think it’s a new argument,” Kelly said, adding that he wasn’t surprised that Pattis planned on raising a First Amendment issue.

The next hearing in Shroyer’s case is set for March 8.

[Image via FBI]

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