Arkansan unfairly targeted, court told
List of journalists at riot requested
The attorney for a Bentonville man charged in connection with the U.S. Capitol riot suspects his client is the victim of “selective prosecution,” according to a motion filed late Friday in federal court in Washington, D.C.
Nathan Earl Hughes, 34, is a “freelance independent journalist with a history of reporting on political rallies, demonstrations and protests going back to 2017,” said his attorney, William L. Shipley of Kailua, Hawaii.
Shipley wrote that he is considering filing a motion to dismiss the indictment against Hughes because of “government misconduct/ selective prosecution.” But first, Shipley wants to get lists of all journalists who were on the Capitol grounds on Jan. 6, 2021, whether approved to be there or not. Prosecutors haven’t provided the requested lists.
“The contemplated motion to dismiss cannot be completed in such a way that would establish a foundation for a claim of disparate treatment based on unconstitutional grounds — i.e., the content of his First Amendment activities before and after January 6 — without information that is certainly possessed by the Government,” Shipley wrote.
Court filings from the government don’t mention anything about Hughes being a journalist.
Prosecutors say Hughes assaulted a federal officer during the Jan. 6, 2021, riot at the U.S. Capitol. Hughes is accused of trying to wrest a riot shield from a police officer who was guarding the Lower West Terrace tunnel.
“Nathan Earl Hughes did forcibly assault, resist, impose, impede, intimidate and interfere with an officer and employee of the United
States” while that person was engaged in the performance of their official duties, according to the indictment. “The acts in violation of this section involve physical contact with the victim and the intent to commit another felony.”
Hughes faces five charges. He was arrested Aug. 30 in Fayetteville. He entered a “not guilty” plea on Oct. 3.
Hughes’ trial is scheduled for July 15 in Washington. He is scheduled to be tried with one co-defendant — Jay James Johnston of Los Angeles, an actor who voiced the character Jimmy Pesto Sr. on the animated Fox show “Bob’s Burgers.”
The two men are accused of obstructing police who were trying to defend an entrance to the U.S. Capitol.
On Friday, Shipley filed a motion to compel the government to provide a list of all journalists who had approval to be on the Capitol grounds or inside the building for the joint session of Congress to certify the electoral college vote count on Jan. 6, 2021.
Shipley also requested “a list of individuals on the grounds and/or inside the Capitol who have been identified [by investigators] as members of the media — both those employed by media companies as well as those who work as a freelance journalist — but who were not on the pre-approved list.”
Federal prosecutors responded to Shipley’s request three days later, writing: “After consulting with our team, this is something that we’ll need to take up with the court. We are not going to be producing this list without more to show that it would be material to preparing Mr. Hughes’ defense.”
The lists are legitimate evidence in the case, Shipley argued.
“To the extent that the Government has identified members of media companies or freelance journalists on the grounds or inside the Capitol who were NOT on the pre-approved list, Mr. Hughes has a legitimate basis to be provided that evidence in order to determine whether a motion to dismiss is warranted based on his disparate treatment relative to other identified media members who have not been charged in the more than three years since the events,” Shipley wrote.
Hughes has received income and licensing fees for access to video footage he filmed, according to Shipley.
“He had also developed a sizeable following on Facebook from his writings about the events he documented,” Shipley wrote. “This led him to be a frequent on-air guest for various online and overthe-air media outlets, during which he provided his firsthand observations of events he observed while attending these rallies, demonstrations and protests. Mr. Hughes covered the events of January 6 in this same fashion and posted his observations on various social media and online news websites.”
Besides an order compelling production of the lists, Shipley also requested an extension of time to file a motion to dismiss based on selective prosecution. He requested that the motion not be due until 21 days after the government produces the lists.
Also on Friday, Shipley filed a motion to suppress evidence that the FBI found at Hughes’ house during a search on Aug. 30, the day he was arrested. The government lacked probable cause for the search because of the amount of time that had passed since Jan. 6, 2021, according to Shipley.
“The government waited 950 days after January 6, 2021, before it applied for a warrant to search Hughes’ residence for evidence,” Shipley wrote. “The time for lawful searches based merely on the events of that day has long since passed. This Court must suppress all evidence seized as a result of that search, and any evidence the Government intends to use at trial that might be traced to the fruits of that unlawful search.”