Judicial Watch Reveals DOJ Memo Declining Prosecution of Babbitt’s Shooter

This memorandum recommends that the United States Attorney’s Office for the District of Columbia decline for criminal prosecution the fatal shooting of Ashli McEntee.

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This declination is based on a review of law enforcement and civilian eyewitness accounts, physical evidence, recorded radio communications, cell phone footage, MPD reports, forensic reports, and the autopsy report for Ms. McEntee. After a thorough review of the facts and circumstances in this case, there is insufficient evidence to prove beyond a reasonable doubt that Lieutenant Byrd violated Ms. McEntee’s civil rights by willfully using more force than was reasonably necessary, or was not acting in self-defense or the defense of others.

Once the demonstrators broke the glass, Lieutenant Byrd took up a tactical position to the immediate right of the barricaded entry doors, [Capitol Police Officer Reggie Tyson] took up a tactical position behind Lieutenant Byrd on the right side behind the third pillar and Sergeant McKenna took up a tactical position behind Officer Tyson and behind the fourth pillar on the right side of the Speakers Lobby.

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All three officers had their service pistols drawn, pointed them in the direction of the barricaded entry doors, and repeatedly instructed the ‘mob’ to get back. The ‘mob’ of demonstrators ignored the officers’ commands and continued to break the glass on the doors in their attempt to breach the Speakers Lobby. Suddenly, Ashli McEntee began to crawl through one of the doors where the glass was already broken out. As Ms. McEntee was climbing through the door, Lieutenant Byrd stepped forward from his tactical position towards Ms. McEntee and fired one round from his service pistol striking Ms. McEntee in her left shoulder, just below her clavicle. Ms. McEntee then fell back from the doorway and onto the floor.
 

Lieutenant Byrd heard glass breaking and saw some of the items used to barricade the doors being pushed down. Lieutenant Byrd continued to tell the rioters to "get back, get back!" Lieutenant Byrd then saw a rioter with a backpack on start to climb through one of the broken glass doors. Lieutenant Byrd saw the rioter "as a threat," so he stepped forward from his tactical position and fired one round at the rioter. The rioter fell back out of the opening and Lieutenant Byrd eventually stepped back into the seated area of the Speaker's Lobby before confirming to other USCP officers that arrived on the scene that he was the one that fired his service weapon.
 

Lieutenant Byrd did agree to participate with his counsel, Mark Schamel, in a voluntary debrief and walk-through of the scene on January 29, 2021 … Due to COVID-19 and other issues, the normal staffing for a joint session was less than half of what Lieutenant Byrd usually has assigned to the House Chamber. Once he arrived that morning, he was informed that USCP operations had made the decision that the uniform officers needed to pick up riot gear.

This matter does not constitute a prosecutable violation of the federal criminal civil rights statutes or the District of Columbia homicide statutes. To show a violation of 18 U.S.C. § 242, the applicable federal criminal civil rights statute, the Government must prove beyond a reasonable doubt that an officer willfully used more force than was reasonably necessary under the circumstances. ‘The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’ Graham v Connor, 490 U.S. 386, 396 (1989).

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Because Ms. McEntee was an active participant in a ‘mob’ that had just illegally entered the Capitol building, and then broke out the glass doors and removed barricades to forcefully gain entry into the Speaker’s Lobby, there is insufficient evidence to refute Lieutenant Byrd’s fear for his life or the life of others at the time he discharged his weapon. Therefore, there is insufficient evidence to prove beyond a reasonable doubt that he willfully deprived Ms. McEntee of a right protected by the Constitution or laws of the United States of America. Accordingly I recommend declination of this matter.
 

• February 2022: We filed an opposition to the U.S. Capitol Police’s (USCP) effort to shut down our federal lawsuit for January 6 videos and emails. Through its police department, Congress argues that the videos and emails are not public records, there is no public interest in their release, and that “sovereign immunity” prevents citizens from suing for their release.
• November 2021: We released multiple audio, visual and photo records from the DC Metropolitan Police Department about Babbitt's death. The records include a cell phone video of the shooting and an audio of a brief police interview of Byrd.
• Also in November 2021: we – in its FOIA lawsuit asking for records of communication between the Federal Bureau of Investigation (FBI) and several financial institutions about the reported transfer of financial transaction records of people in DC, Maryland and Virginia on January 5 and January 6, 2021 – told a federal court that the FBI may have violated law in its January 6 probes.

A new Department of Homeland Security (DHS) bulletin warning of a “heightened threat environment” claims domestic violent extremists have expressed grievances related to their perception that the U.S. government is unwilling or unable to secure the U.S.-Mexico border. Therefore, the dispatch says, the domestic extremists “have called for violence to stem the flow of undocumented migrants to the United States.” Issued by the agency’s National Terrorism Advisory System, the notice goes on to say that there “is increased risk of domestic violent extremists using changes in border security-related policies and/or enforcement mechanisms to justify violence against individuals, such as minorities and law enforcement officials involved in the enforcement of border security.”

The document lists other threats as well but fails to reveal where the information, or intelligence, comes from. Judicial Watch has launched an investigation to uncover records that formed the foundation for the decision to issue the warning as well as the records that substantiate the warning. Within hours of the bulletin’s release, Judicial Watch filed a Freedom of Information Act (FOIA) request with DHS for the files that could provide some answers. Not surprisingly, the new terrorism advisory promotes the agency’s controversial misinformation campaign, which was technically suspended after major backlash over government overreach. A DHS panel known as the Disinformation Governance Board was supposed to combat disinformation and, though it was officially dismantled and its director resigned, the message remains. “The continued proliferation of false or misleading narratives regarding current events could reinforce existing personal grievances or ideologies, and in combination with other factors, could inspire individuals to mobilize to violence,” this week’s terrorism advisory states.

The three-page bulletin also warns about abortion and election-related violence. It says that those in favor of and opposed to abortion rights have encouraged violence against government, religious and reproductive healthcare personnel and facilities as well as those with opposing ideologies. “As the United States enters mid-term election season this year, we assess that calls for violence by domestic violent extremists directed at democratic institutions, political candidates, party offices, election events, and election workers will likely increase,” DHS states, adding that it expects the “threat environment to become more dynamic as several high-profile events could be exploited to justify acts of violence against a range of possible targets.” The targets could include public gatherings, faith-based institutions, schools racial and religious minorities, government facilities and personnel, U.S critical infrastructure, the media, and perceived ideological opponents.

“Threat actors have recently mobilized to violence due to factors such as personal grievances, reactions to current events, and adherence to violent extremist ideologies, including racially or ethnically motivated or anti-government/antiauthority violent extremism,” according to the DHS terrorism bulletin. “Foreign adversaries—including terrorist organizations and nation state adversaries—also remain intent on exploiting the threat environment to promote or inspire violence, sow discord, or undermine U.S. democratic institutions.” DHS discloses that the primary threat of mass casualty violence in the U.S. stems from lone offenders and small groups motivated by a range of ideological beliefs and/or personal grievances.

The agency created after 9/11 to safeguard America, writes that it is responding to the threats by collaborating with partners across every level of government, the private sector and in local communities. Some of the so-called partnerships—such as information sharing with the Federal Bureau of Investigation (FBI)—make sense but others appear questionable. For instance, DHS lists a Nonprofit Security Grant Program that provided over $250 million in funding to support “target hardening and other physical security enhancements to non-profit organizations at high risk of terrorist attack.” The agency also spent at least $77 million on preventing, preparing for, protecting against, and responding to threats via a special Homeland Security Grant Program. DHS’s Center for Prevention Programs and Partnerships awarded about $20 million to train and educate “stakeholders” on how to identify indicators of radicalization to violence, where to seek help and the resources that are available to prevent targeted violence and terrorism. Judicial Watch is investigating what exactly these programs do with our taxpayer dollars and how the partnerships function.

Hillary did it. And the FBI helped.

That’s the Occam’s Razor conclusion behind court action in Washington last week that added new details to a growing mountain of evidence about the true forces behind the sensational “Russia collusion” allegations that nearly brought down the Trump presidency.

John Durham, the special counsel appointed to investigate the Russia mess, lost his case in a DC courtroom. The jury acquitted Washington attorney Michael Sussmann, a DC insider with deep connections to the Democratic Party and the intelligence community, on the only charge Durham managed to bring: a single false-statements count alleging that Sussmann lied to the FBI when he brought it allegations of a link between Trump and Moscow’s Putin-connected Alfa Bank.

Why did the DC jury acquit Sussmann? As Judicial Watch President Tom Fitton tweeted last week—politics in the heavily Democratic district aside—the “simplest answer is the evidence— which suggested the Obama FBI leadership knew full well the Clinton gang was behind the Alfa Bank-Russia smears of Trump. Durham tried to pretend Obama FBI was a victim. It was a co-conspirator.”

Sussmann’s defense relied on the preposterous claim that the attorney—a former Justice Department cybersecurity prosecutor, lawyer for the Democratic National Committee, and adviser to the Clinton presidential campaign—was merely acting as a “good citizen” when he sought an urgent meeting with FBI General Counsel James Baker to pass along the Alfa Bank tip. Sussmann came to the meeting highly prepared. His indictment notes that he offered Baker “three ‘white papers’ along with data files allegedly containing evidence supporting the existence of this purported secret communications channel” between Trump and Alfa Bank.

Baker knew Sussmann well. It emerged at trial that Sussmann did not even need a pass to get into the highly secured FBI headquarters for his meeting with Baker—he already had one. Evidence also showed that Baker, tasking FBI subordinates with investigating the Sussmann tip, withheld Sussmann’s name—a suggestion that maybe not everyone at FBI HQ would view an allegation from a DNC insider on the eve of a presidential election with such credulity. In trial testimony and earlier interviews, Baker suffered convenient memory lapses and uncertainty about what Sussman actually said, opening a path of reasonable doubt for the jurors.

There’s no doubt, however, that one of Sussmann’s clients was the Clinton presidential campaign, and Durham established that it was deeply involved in the Alfa Bank smear. Durham showed that the Alfa Bank allegations were cooked up by Clinton campaign allies and operatives, including the investigative firm Fusion-GPS—the key force behind another sensational Clinton smear, the Steele Dossier. Prosecutors introduced evidence showing Sussmann billed many hours to his law firm for meetings with Clinton campaign officials on Alfa Bank.

In bombshell testimony, former Clinton campaign manager Robbie Mook said Mrs. Clinton herself authorized giving the Alfa smear information to the media. Under oath, Mook described a conversation with Clinton about the Alfa Bank material, telling her, “hey, we have this and want to share it with a reporter.”

Mook added, “she agreed to that.”

Not only did Clinton agree, she enthusiastically supported the story when it was published on the left-wing website, Slate. She tweeted a link to the piece with the comment, “it’s time for Trump to answer serious questions about his ties to Russia.”

Campaign adviser Jake Sullivan—now President Biden’s national security adviser—chimed in, issuing a statement declaring, “This could be the most direct link yet between Donald Trump and Moscow. Computer scientists have uncovered a covert server linking the Trump Organization to a Russian-based bank.”

Calling it a “secret hotline,” Sullivan prodded the FBI, saying he could “only assume federal authorities will now explore this direct connection between Trump and Russia as part of their existing probe into Russia’s meddling in our elections.”

The bogus story appeared just nine days before the election. October Surprise: mission accomplished.

Later this year, Durham will take a closer look at that other infamous smear, the Steele Dossier. Durham indicted an alleged key source of the dossier, Ivan Danchenko, on five counts of lying to the FBI. Danchenko has pleaded not guilty. It seems likely Mrs. Clinton, her associates, and the FBI will play a central role in that prosecution, too.