At 2:42 p.m. on Jan. 6, rioters clashed with officers guarding a door to the US Senate gallery. Two videos captured the scene.
The first is limited to a rioter’s vantage point, and tilts and jerks and at one point turns entirely away from the action.
The second video doesn’t have sound, but it’s stable, clear, and comprehensive. The 1-minute, 21-second video captures the full altercation, as well as events leading up to the fight, immediately after it, and unfolding nearby.
The second clip came from a security camera down the hall. Surveillance cameras captured more than 14,000 hours of footage between noon and 8 p.m. on Jan. 6. These videos would paint the most complete picture of what happened inside, but the US Capitol Police, backed by federal prosecutors, have strictly controlled who can see them and how much footage can be shared with the public.
The full accounting of the movements of key players that this collection of footage would provide — not just of rioters, but also lawmakers and police officers — is exactly why Capitol security officials don’t want them out there.
The videos would help fill in the timeline of where members of Congress went, what they were doing, and who they were with as rioters breached the building. Rep. Bennie Thompson, chair of the special House committee investigating Jan. 6, told the Washington Post that they’re exploring information about the activities of Republican members who may have been in contact with former president Donald Trump during the riots. A committee spokesperson told BuzzFeed News via email that they’re “in the process” of getting materials from other congressional committees that investigated the insurrection, including records from Capitol Police; a Capitol Police spokesperson said the committee hadn't made a request for the footage directly with the agency.
The clips of the Senate doorway incident were from a collection of videos prosecutors presented to a judge in arguing that Nathaniel DeGrave — charged with, among other things, being part of the hallway melee — should stay in jail pending trial. The US attorney’s office in Washington released nine videos from DeGrave’s case this month in response to a legal effort by media outlets (including BuzzFeed News), but successfully argued to keep two secret: recordings from surveillance cameras positioned elsewhere in the Capitol.
“It goes without saying that disclosing this sensitive infrastructure to the public, including hundreds of individuals who have already shown a willingness to storm the Capitol in an attempt to obstruct such crucial proceedings to our democracy as the certification of the Electoral College vote, would be detrimental,” the prosecutor in DeGrave’s case wrote in a July brief. “Once the capabilities of a U.S. Capitol interior surveillance camera, including its position and whether it pans, tilts or zooms, is disclosed to the public via the release of a single video from that camera, the cat is out of the bag.”
The security concerns inherent in revealing the extent of the Capitol’s closed-circuit camera network have convinced at least one judge so far to keep videos sealed. But the ongoing investigations into Jan. 6 will continue to place pressure on the government’s desire to keep as much of this footage out of the public eye as possible.
Lawyers for a media coalition (including BuzzFeed News) are filing requests for videos on a rolling basis once prosecutors present them in court, and have argued that every time the government does release surveillance footage, it undermines their effort to keep other clips secret. If any of these cases go to trial, the public interest in seeing evidence the government presents to a jury will be even stronger.
Separate from the criminal prosecutions and congressional probe, a journalist filed a lawsuit this month attempting to pry loose Jan. 6 surveillance footage, as well as other records about how Capitol Police handle security and public transparency. The Freedom of Information Act doesn’t apply to Congress, but the suit argues that the overarching “common law” right of access to public records should apply to some legislative materials, and particularly records related to Jan. 6; the case was first reported by Politico.
The government has cleared some footage for release in the months since the attack. During Trump’s impeachment trial in February, the Democratic impeachment managers — who were given access to all of the videos — played clips showing just how close lawmakers, congressional staff, and other public officials came to the rioters. One clip showed Capitol Police Officer Eugene Goodman running past Sen. Mitt Romney and gesturing at him to go back; Romney spins around and runs after Goodman.
Other clips showed former vice president Mike Pence being evacuated as Goodman led a nearby mob in the opposite direction, and Senate Majority Leader Chuck Schumer running down a ramp he’d walked up seconds earlier to avoid a confrontation.
Surveillance footage has been a wellspring of evidence for the FBI agents and prosecutors building cases against the nearly 600 people charged with participating in the riots. They’ve used it to bolster the mountain of evidence scattered across social media and other publicly available sources. Screenshots from these videos frequently crop up in charging papers as the government’s proof that a defendant was in a specific area of the Capitol at a specific time.
Defendants and their lawyers are getting access to surveillance footage, but only under protective orders that restrict their ability to make the videos and other evidence they receive from the government public.
There’s a wealth of videos posted online by people who went inside the Capitol — although that footage can be limited to the perspective of the person holding up their cellphone or GoPro. The same goes for videos that the government has been OK releasing from cameras worn by Metropolitan Police Department officers; Capitol Police officers didn’t use body cameras, so there isn’t footage from their vantage point.
The closed-circuit video (CCV) footage, which doesn’t have audio and usually shows events at a distance, doesn’t pack the same visceral punch as other videos from Jan. 6 — for instance, the police bodycam videos that capture every grunt, scream, crunch, and chant. But the footage is unique in that it recorded the entirety of the insurrection including the movements and locations of Congress members throughout the day.
To the extent prosecutors have agreed to release a small amount of Capitol surveillance footage, it’s been a mix of videos from inside and outside of the building. In opposing the release of videos from Nathaniel DeGrave’s case, the prosecutor argued that the bar should be higher for interior footage, since lawmakers “typically do not congregate en masse” outside. The government also argued that just because they’d allowed the release of footage in another case — revealing where that particular camera was mounted in the Capitol — didn’t mean that the floodgates should open.
Chuck Tobin, one of the lead attorneys representing the media coalition, said it was no secret what the Capitol looked like inside, and since officials had already said they were upgrading surveillance equipment after Jan. 6, information about the positioning of cameras during the riots was “obsolete or soon to be.”
Given the vast amount of other video evidence from Jan. 6 that was already public, Tobin said, “there’s nothing left to protect in terms of vantage points.”
In an Aug. 13 ruling, the judge sided with the government and kept the two surveillance videos from DeGrave’s case under seal. US District Judge Paul Friedman wrote that the security risks the government had identified outweighed the presumption of public access to criminal case proceedings and evidence under the First Amendment and what’s known as “common law.”
“Such disclosure would reveal information that could be used by anyone who might wish to attack the Capitol in the future,” Friedman wrote.
The Capitol Police limited access to surveillance footage long before Jan. 6. In a March affidavit, the government has relied on in fights over videos, the Capitol Police’s chief lawyer Thomas DiBiase described the CCV system as the “backbone” of security for the buildings and grounds that make up the Capitol complex. Footage isn’t backed up to the cloud, and typically can only be viewed at specific workstations. When a member of Congress wanted video of a staffer interaction with officers, the agency made him come to an office to see it, under the supervision of an employee, he wrote.
DiBiase explained that they’d only share videos in criminal investigations and other court proceedings under certain circumstances; they’ve refused to turn over videos to people suing over being injured on Capitol grounds “unless they involved serious injuries or death,” he wrote — and even then, a lawyer or investigator would have to view the footage with a Capitol Police employee in the room.
By the time DiBiase signed his statement in March, the Capitol Police had turned over Jan. 6 surveillance footage to four categories of investigators: congressional committees that oversee the Capitol Police, the House impeachment managers who prosecuted Trump, the FBI, and the Metropolitan Police Department. DiBiase noted that the congressional overseers later requested and received footage from the entire day.
The disclosures to federal and local police came with conditions. FBI and MPD officials signed agreements days after the insurrection stating that the videos remained under the “legal control” of the Capitol Police. These agreements, which the government submitted in court along with DiBiase’s declaration, state that any rules that apply to other congressional materials apply to the videos. That meant that they couldn’t be released to the public via a hypothetical Freedom of Information Act request to the FBI now that the videos were in its possession.
In the meantime, the case-by-case legal fight over what videos the public can see presses on. As defendant Eric Torrens prepared to enter a guilty plea to illegally demonstrating inside the Capitol, US District Chief Judge Beryl Howell asked the government to show her videos they’d cited in describing his activities that day. Once they did, the judge asked the government and the defense to weigh in on whether she should release them to the public. The government objected to releasing five surveillance videos, citing security concerns.
The judge didn’t end up ruling on the videos at the Aug. 19 plea hearing, explaining that it wasn’t a live issue since no one had asked for them yet; the media coalition has since filed a request that’s pending. But Howell did note that there was a “strong presumption” in favor of public access to judicial proceedings, and specifically when it involved evidence that a judge or the government had relied on.
“Despite the fact that the attack of the Capitol was broadcast on television — not just in the United States, but globally — and into the homes of millions of Americans, debate and dispute over what really happened that day continues,” Howell said. “In this context, it behooves the government to explain its prosecutorial decisions in how different kinds of conduct are being charged and resolved, and support those decisions with the evidence at hand.”