Shipwreckedcrew has been reporting on what could turn out to be a significant development in the DoJ's prosecutorial pursuit of January 6 Event protesters. You can read the full account at the link, and I'll try to summarize it from a big picture viewpoint, without getting into the procedural weeds too far:
THIS is a sign of desperation from DOJ
Here's the short version.
Defendant Federico Klein was arrested on March 4, 2021. He was indicted on March 19 and charged with both felony and misdemeanor crimes.
Keep in mind that once an indictment is returned, the Speedy Trial Act clock starts running. There are extenuating circumstances to slow that down, but a federal judge's job is to monitor all this and, if need be, insure that DoJ is not abusing the rights of the defendant.
What happened next is that, well, not too much happened at all. Specifically, what didn't happen was that the DoJ didn't provide the defendant with discovery material that it was required to provide.
The day before a scheduled status hearing (July 13) DoJ told the judge (Bates) that they wouldn't be able to provide the material for many months, because of the press of handling so many cases. DoJ was looking at a time frame of some time in 2022.
The judge didn't buy that dog-ate-my-homework excuse and set a trial date of September 12--2021.
All clear? Now follow what happened next.
DoJ, knowing they couldn't comply, proceeded to engage in some sharp procedural maneuvering. Although the Klein case had been handled separately for five months, yesterday DoJ claimed that they were going to charge Klein in conjunction with a different case involving multiple other January 6 defendants. The effect of this move was to have the Klein case reassigned to the judge handling the other case (McFadden). Klein's prosecution would also conform to that case, for purposes of the Speedy Trial Act. The trial date would be extended.
SWC is totally unimpressed with this procedural sleight of hand. Not to put too fine a point on it, he leads with this:
The Biden Justice Department committed prosecutorial misconduct today in one of the January 6th cases.
The nub of SWC's critique is that, having examined the claims by DoJ that Klein's prosecution should be joined to the other case
None of that explains why it has taken the government from March to August to determine that there is a common set of facts and evidence that applies to all nine defendants, now including Klien [sic]. The government had an obligation under the local rule to “immediately notify in writing” the Court about related cases.
Why is it that four weeks prior to Klien’s trial date, after he’s been a solo defendant for five months, and only after the DOJ told the court it cannot comply with its discovery obligations in time for Klein’s trial, did it suddenly decide he should be tried with the defendants in the McCaughey case? Everything about what the DOJ has done here with the Klein case reeks of bad faith and manipulation to get away from Judge Bates and the Sept. 12th trial.
Now, SWC points out a line of argument that Klein's lawyer could advance to argue against the reassignment. However, SWC also argues that this is a case in which a judge should step in to prevent this sort of bad faith manipulation of the judicial process. Judges don't often like to get confrontational with DoJ, but ...
In effect, the government has used this procedural device in an unethical manner — to gain the additional time needed to provide the discovery required by law and avoid having to go to trial in the Klein case without having done so.
If Judge McFadden has any integrity at all he should sever Klein from the other defendants and send his case back to Judge Bates. Judge Bates should tell the prosecutors to show up on September 12, 2021, having complied with all their discovery obligations and prepared to pick a jury.
Judge Bates — appointed by Pres. Bush 43.
Judge McFadden — appointed by Pres. Trump.
I know what some will say. "Integrity"? What's Shipwrecked talking about? After the last 5 years, and he's talking "integrity"?
Nevertheless, there have already been signs that the DC judges--of all political persuasions--are unhappy about the way these January 6 cases are being handled. That includes DoJ playing fast and loose with the usual standards of Due Process, as regards the defendants. Further, as SWC says, these maneuvers amounted to "DOJ pretty much “gave the finger” to Judge Bates and his September 12th trial date."
Judges belong to a third branch of the government--theoretically independent. As such they don't like for any judges to be flipped off by prosecutors. Not even with the approval of a former federal judge--Merrick Garland. In fact, that circumstance could make this seem even more obnoxious to the DC judges. We'll see.