A court opinion unsealed Tuesday evening marks what appears to be the first time the federal court in Washington has disclosed the FBI and Justice Department’s use of a domestic terrorism measure in the USA Patriot Act to obtain a search warrant connected to their sweeping probe into the Jan. 6, 2021, attack on the Capitol. Federal investigators probing the extremist group Oath Keepers on charges of seditious conspiracy last year invoked the provision that permits the government to obtain a search warrant from a U.S. magistrate judge anywhere in the country rather than one located where the search is to be executed in a domestic terrorism investigation, according to the newly unsealed court records.
The 18-page opinion revealed that in July 2021, prosecutors asked a U.S. magistrate judge in D.C., rather than one in Texas, to approve a court- authorized search of a cellphone owned by a person who appears to match the description of an attorney for the Oath Keepers, Kellye SoRelle. The lawyer was arrested last week in Texas and was with the group’s founder, Stewart Rhodes, outside the Capitol on Jan. 6, 2021.
The opinion, signed and released Tuesday by U.S. Magistrate Judge Zia M. Faruqui, did not identify the Oath Keepers, SoRelle or Rhodes by name, or explain why prosecutors utilized the provision, other than to say it was enacted to help investigators move urgently in terrorism cases.
However, Faruqui’s opinion quoted an FBI agent’s affidavit submitted with the warrant application outlining details and statements that are identical to the allegations prosecutors have made in indicting Rhodes and other alleged Oath Keepers members on the historically rare charge of seditious conspiracy.
The opinion related to the search warrant application also cited alleged statements by the device owner on social media that mirror those made by SoRelle, and that could be incriminating.
The cellphone owner told law enforcement that there were no longer any barricades visible by they time they and the group’s leader arrived at the Capitol on Jan. 6, the court opinion stated. But the judge said the government offered video evidence from the device owner that indicated the person saw barricades and that people “broke the barrier, they got up there, they may end up inside before it’s all said and done.”
Online sleuthers on July 18, 2021, identified video posts attributed to SoRelle allegedly making identical statements. The search warrant application appears to have been filed between July 19 and July 22 of last year, based on its docket number and the timing of unsealed applications assigned docket numbers before and after it.
A federal defender for SoRelle, who made an initial federal court appearance last week on charges including conspiring to obstruct and obstructing an official proceeding of Congress and tampering with documents, did not respond to a phone and email request for comment Tuesday evening.
Rhodes and co-defendants have pleaded not guilty pending trials beginning later this month.
It was not clear how often the Justice Department has asked magistrate judges in Washington to approve search warrants for targets elsewhere in the country in Jan. 6-related investigations — or courts to issue “extraterritorial” warrants for property searches in domestic terrorism investigations overall — but they seem to be the exception rather than the rule.
The July request was “unlike most search warrant applications submitted to this Court,” Faruqui wrote Tuesday. An FBI agent “assigned to a squad that is responsible for Domestic Terrorism cases” cited an exception to the normal rule of federal criminal procedure that federal law enforcement or an attorney for the government seek approval for a search warrant from a judge where the property to be searched is located, the judge wrote. Spokesmen for the U.S. attorney’s office for the District and the Justice Department did not immediately respond to requests for comment Tuesday evening.
Congress enacted the exception after the Sept. 11, 2001, terrorist attacks on the World Trade Center in New York City and the Pentagon, saying it would speed fast-breaking and complex investigations to allow judges most familiar with developments to rule on such warrants no matter where search targets were located. The USA Patriot Act allowed any magistrate judge with authority in a district where domestic or international terrorism-related activities — not just crimes — may have occurred to approve warrants anywhere.
The Jan. 6 attack has been called an act of domestic terrorism by FBI Director Christopher A. Wray and an assault on the peaceful transfer of presidential power by Attorney General Merrick Garland. U.S. prosecutors this July followed through for the first time on threats to seek enhanced terrorism sentencing penalties for an individual who rejected a plea deal in the attack.
Rachel Weiner and Aaron Schaffer contributed to this report.
Poster Comment:
Dead Republic....full-blown dictatorship by that goddamned pedophile Joey Biden