Lawfare Daily: Evaluating January 6 Prosecutions with Greg Rosen

[Intro]

Greg Rosen: Nobody watched what happened at the U.S. Capitol, just ignoring individual defendants, nobody watched what happened and said either this is okay or this doesn't constitute a crime. The question was how are we going to investigate this and do so in a fair and thorough matter?

James Pearce: It's the Lawfare Podcast. I'm James Pearce, Lawfare Legal Fellow with Greg Rosen, an attorney at Rogers, Joseph O'Donnell, and recently the head of the Capital Siege Section at the D.C. U.S. Attorney's Office.

Greg Rosen: I mean, it is the most sort of intricate and, and successful discovery project in department history, and I'd venture to say in, in criminal history. And that is largely because of public servants who realize, you know, we, one, wanted to get this right and, two, failure to get this right would've been catastrophic.

James Pearce: Today we're talking about investigating and prosecuting the attack on the U.S. Capitol on January 6, 2021, and how to evaluate that investigation and prosecution more than four years later.

[Main Podcast]

So you and I know, know each other and, and you are, are recently have, have departed from the government where you served, most notably, at least in, in recent years as the chief of the Capitol Siege Section. And if I'm not mistaken, a section that did not exist when you came to the U.S. attorney's office. And I think that's really the, the thrust, not, not the fact that didn't exist, but the the January 6 event and, and everything that that surrounded and followed it that, that we wanna talk about today.

But I wanna contextualize our conversation and, and move back a little bit in time just to get a sense of, of what brought you to that, that place. So let's start, start with, how did you become a prosecutor?

Greg Rosen: So, I always wanted to be a prosecutor. So my, my father was in law enforcement. My mother was a nurse and then a nurse practitioner. So I always sort of felt the call public service and, you know, helping people, it called to me.

I went to law school and when graduated I interned for the Loudon County Commonwealths attorney's office in Loudoun County, Virginia, which if you don't know, is one of the largest jurisdictions in the Commonwealth of Virginia, in northern Virginia. And then soon parlayed that into a, a job as a prosecutor we call ourselves.

There are four commonwealths in, in the United States, so it's a commonwealth and Assistant Commonwealth’s Attorney was my job for over four years.

James Pearce: Okay. And just, just curious, what kind of cases did you handle as an Assistant Commonwealth? So an ACA instead of an ASA.

Greg Rosen: ACA, yeah. I think its ACA, ASA, ADA, you just pick your acronym.

I handled anything ranging from speeding tickets all the way to murder. So one of the last big cases I left, I did before I left was a, you know, basically a assassination involving a narcotics case where, you know, the perpetrator believed that the victim wasn't treating him respectfully.

But I mean, we handled anything, you know, relating to the safety of the citizens of the county, including traffic offenses, DUIs. I mean, especially in an area that has sort of an urban, suburban environment, people who are driving out in the streets, that is a, that is a common core practice area for prosecutors.

James Pearce: So I, I would suspect that that range of experiences very much served you well when you transitioned, I assume at some 4 years or so after taking on that first job to the D.C. U.S. attorney's office. Is that, is that right? Is that, that your, your, was it, was that your next stop, the D.C. U.S. Attorney's Office?

Greg Rosen: Yes. So I went in 2015 to the U.S. Attorney's Office, as you are familiar with, but people who go to the U.S. Attorney's Office typically go in through the Superior Court Division. So because the U.S. Attorney's Office in DC is not really part of a state, it's a federal jurisdiction, our office handles both federal and local crime for adults.

And so, a lot of prosecutors, in fact, two thirds of the office dedicate their time to prosecuting local, violent, and quality of life crimes. So, I was thrown into the chaos that is D.C. Superior Court. And so my skillset in Loudoun was both, it was a wonderful tool to bring to the tool shed.

But at the same time, you know, there are things that are specific to D.C. that you cannot, just you like the experience is so worth it to be able to get into court and be able to sort of test your mettle and your patience and your ability to, to mete out justice with chaos sort of swirling around you.

James Pearce: All right. So I know this isn't the focus of, of what we've, we've brought you on to talk about, but I, but I'd love to get maybe whether, whether a couple of anecdotes or, or, or a big picture reflection.

I mean, how would you characterize your, your time in, in Superior Court? Or, or kind of what the, what the life of a Superior Court prosecutor is like when, when at the D.C. U.S. Attorney's Office.

Greg Rosen: I mean, it's, it's an incredible experience. So, so the way that I, it's a pretty hostile jurisdiction for prosecutors, so I would not call it a, it's fairly defense oriented. I'm sure defense attorneys in, in my current new role, I might take a different tact on that, but the law is, is incredibly nuanced.

It's very specific to like really granular fact patterns. And so you end up in these like deep dives and you know, your investigations are incredibly thorough. You know, it's not like the officers or agents come to you with like a package of information and they say, here, here's your trial. You know, you, you are sussing out those details. You are investigating.

And so, you know, it is, it is like constant pressure cooker, just in terms of being able to go from one case to the other. I had three jury trials back to back to back over the course of several weeks. It's exhausting, but if you love being in the courtroom, it's, it’s exhilarating.

James Pearce: Certainly sounds like it. So, so at some point you, I don't know whether, whether I say graduated, retired, scampered away to the federal court system. And I think you, you, you obviously made passing reference to this earlier, but maybe you can just provide a little context first.

What are the types of cases that end up in federal court in, in D.C. in the District of the District of Columbia, as distinct from the superior court side where I think you said about two thirds of the office's work is?

Greg Rosen: Yeah, so I would use the word, I wouldn't use the word graduated because there are prosecutors who stay in Superior Court doing homicides and rapes and cold cases.

James Pearce: Sure

Greg Rosen: And I mean like, you know, these are, these are just seasoned veterans.

That being said, the distinction between federal district court and Superior Court can, can kind of be drawn similarly to other jurisdiction’s the difference between, you know, your federal court and your state court. And so like your typical murder, your typical sex offense, your typical low level narcotics trafficking offense, or you know, assault with a dangerous weapon. Those are sort of the bread and butter of state jurisprudence. And so those will likely and typically stay in Superior Court.

But the more aggravated the conduct, the more violent the, and the more of a federal. There is an opportunity for prosecutors to bring those cases over to federal court. It's obviously a very different style of practice. It's much more writing heavy, it's much more motions practice heavy.

And so, you know, those cases can range from, you know, simple possessory firearms offenses, all the way to RICO, VICAR, you know, racketeering type charges, or your traditional, whether it's wire fraud or bribery or you know, white collar investigation.

James Pearce: And when you yourself transferred over and started handling cases in federal District Court, what section did you land in? What were the types of cases? I mean, obviously you just listed a few fair to assume those were the types of cases you were doing.

Greg Rosen: Yeah, so I, I mean, I would call myself the violent crime prosecutor.

That's, you know, sort of my prior bread and butter. I went to the violent crimes and narcotics trafficking section, VCNT. For whatever reason, that name gets bandied about and changed in different acronyms depending on the year and the decade. But by and large, think of it as complex violent crime, complex narcotics trafficking, and a lot of, you know, illegal firearms, either trafficking or possession.

And so, you know, my, my focus was primarily on those cases. And building those cases often from, you know, a small, let's say possessory offense to, you know, a wider spread trafficking enterprise.

James Pearce: And I think you touched on this, but just so, so I'm clear, how would you characterize the kind of relative busyness or sort of how full dockets are between Superior Court and, and the federal district court side, which you've done been talking about in your last general, your last few responses.

Greg Rosen: I mean, they're both incredibly busy. They just have like a different, there's, there's a different tenor to them.

So Superior Court, right? You are, you are doing writing, you are doing motions practice, but a lot of it is on your feet thinking. A lot of it is responding, making sure your officers get into the court the right time, making sure that you are, you know, preparing your trials in advance, making sure that you kind of like a bit of, you know, run the seat of your pants and kind of get all your ducks in a row.

In district court, you know, the practice is, I wouldn't say slower, but it's more methodical. So like written products, you know, are, should be incredibly vetted, you know, and scrutinized because you are taking positions on behalf of the United States that can only reverberate within your district, but can also carry over to other districts who wanna say like, why in the hell were you taking that position?

James Pearce: Yeah, that's, that's helpful.

 Before we turn to the, to January 6th stuff which I think is really the meat of, of our conversation here, I wanted to get a sense, am I right in thinking you did some work on the, the government's response after the killing of George Floyd? There were the series of protests throughout the country, of course, but that included in the, in the District of Columbia. Did, did you work on, on some of those investigations and prosecutions?

Greg Rosen: I did, I did. I was a supervisor- and had a play in some of those.

James Pearce: Yeah. so, I mean, it strikes me that, that those and experience there is pretty timely these days at the time we're recording, which may differ from when, when we actually, when this airs.

There's certainly some significant tension in what is happening out in, in California with the deployment of, of federal troops out there and riots and, and protests that both led to that deployment and, and seemed to probably increase in, in the face of that deployment.

You know, any kind of lessons or experience that that, that you drew from handling those kind of the, the riot type cases, not the January 6th riot cases, the January 2020 riot cases that you think are, are relevant for what we're starting to see at this point?

Greg Rosen: Yeah, I mean, like, I'm not sure if there's some sort of giant global takeaway from, from each, you know, each riot is created differently. I mean, obviously harm against law enforcement and harm against property is something that strikes at the core of sort of American values. It bothers people, right? It bothers people to see cities or neighborhoods or towns, you know, burning or, you know, your, what you believe, your values to be sort of compromised.

That being said, I think what we saw in the summer of 2020, which was a very unique time, I think we would all agree, you know, in American history. There was a lot of emotion and it resulted in a lot of First Amendment protected activity. And often at least in the District of Columbia, we saw that that First Amendment activity can spill over into, you know, whether it's, you call it violent protest or, you know, physical actions against law enforcement.

And so when it was feasible and when the evidence was sufficient, you know, we, we investigated those cases and we brought those cases. And you know, the record, at least on the district court side is, is pretty replete with examples of cases that we brought that we thought that were meritorious.

One takeaway that I had though, and I know what the evidence looks like in Los Angeles as we say this. You know, the evidence from January of 20-, or of June of 2020, you know, it's important to remember that, you know, body-worn camera programs probably started pilot wise in the United States in about 2015, and it took a couple years for those to become much more active.

Closed circuit television, you know, and surveillance videos, you know, the level and detail of what they capture was different back then. And so the quantum of evidence that we saw in the aftermath of the murder of George Floyd was just, ignoring sort of what I'll say the parallels or not parallels between that and January 6th. The actual evidence just wasn't the same.

And so the idea, I mean, obviously I know in the political sphere it's really nice and convenient to say that prosecutors are cherry picking emotionally you know what cases they pursue and not. But a lot of it is fully dependent on the evidence and the context of the facts that you have before you, that are presented to you.

James Pearce: Yeah, I mean, you're, you're, you're preaching to the, to the choir here. But I, but I think it's a really important point to, to underscore.

And, and I think as you, you also said when you get to January 6th, as we'll discuss, and there is just as much video evidence, in fact, more video evidence than I think in any investigation ever undertaken in the, in the history of the United States. It becomes awfully hard to make the argument that prosecutors are, are, are cutting and finding the right angles.

That said, and I don't wanna get ahead of us, it, it, it can be frustrating to see a public discourse that seems to suggest otherwise when at the same time you've got this, this huge plethora of, of evidence as you say, that can capture from, from many, many different perspectives. But let's, let's not get ahead of ourselves.

Let, let's, let's get there. I think you've teed up the conversation for January 6th. Before we kind of get into your role and the government's response, where were you? Like, you know, where, where were you when you learned about what was happening at the Capitol on, on January 6th?

Greg Rosen: I was home, so this was, remember this was still in the middle, the vaccines had just rolled out. This was still in the middle of the pandemic.

So we had a schedule that was largely remote. And so I think I was on a call relating to a firearms trafficking case or something like that, and my wife had urged me to come downstairs. And the tone in her voice suggested that I needed to listen to my wife.

So I ran downstairs-

James Pearce: Which, which is always true, right, Greg? There's nothing particular about that tone.

Greg Rosen: Correct, I always listen. I'm, I'm, I'm very obedient in that respect.

But I came downstairs and saw what was happening on the television, just like millions of Americans, and immediately sort of realize, ignoring my sort of disgust at what was happening to the U.S. Capitol, realized there would likely be a necessary and robust prosecutorial response within our district. And so that began sort of the cascading of events to, to coordinate within the U.S. Attorney's Office.

James Pearce: And kind of, where were you within the U.S. Attorney's Office? You said you think you may have been on a call related to a, a, a, a violent crimes or narcotics investigation, which as you mentioned earlier, was something you were doing.

What, what was your position? What's, were you in the, the violent crime and narcotics trafficking section within the U.S. Attorney's Office at that point?

Greg Rosen: So I had, you know, every U.S. Attorney's Office has different units within it, or sections within it that sort of devote itself to specific crimes. And ours was no different.

When I came on as a supervisor, I was a supervisor in VCNT in November of 2019. We had transitioned over to a section called Federal Major Crimes, which was intended to involve reactive and proactive investigations, but also to help train prosecutors sort of criminal division wide who come into the criminal division on, on best practices and sort of, you know, how to, how to do the job.

And so I was a deputy chief in our FMC section at the time, along with one of their deputy chief with me as well as our chief. And then, you know, we, we, obviously D.C. is not, it's not uncommon to have protest activity within the District of Columbia. And sometimes that protest activity can sort of bubble up into isolated incidents of violence or, or crimes.

And so, you know, given the chatter that we had heard, we had hoped that nothing would happen on January 6th, but we were mentally prepared for something not quite, nothing what we actually saw though.

James Pearce: Right. And, and, and to be clear, I think this is implicit in your comments and, and will be explicit in our later conversation. The idea that, that the federal major crime section or FMC had handled protest activity is not to suggest that what January 6th looked like was, you know, mere, mere protest activity. Right. And, and if anything-

Greg Rosen: No, it was not,

James Pearce: Ultimately as we'll talk about led to the creation of a whole separate section. But I mean, that gets to really kind of the next thing I wanted to, to talk to you about, which is how did the government respond? How did you kind of figure out how to deal with what you were seeing? How did you begin an investigation? How did you staff prosecutions? I mean, what did that process look like?

Greg Rosen: I think it's important to remember and contextualize, 'cause a lot of people seem to sort of gloss this over. But this investigation began under the Trump administration. And it began under a acting Deputy Attorney General, who I never personally interacted with, but based upon public statements, was fully supportive of the uniform and sort of complete effort of Department of Justice to respond to this crime.

When it happened, when it was obvious that there was a crime. Nobody watched what happened at the U.S. Capitol, just ignoring individual defendants, nobody watched what happened and said either this is okay, or this doesn't constitute a crime. The question was, how are we going to investigate this and do so in a fair and thorough manner?

And so, you know, the government's response was robust. It was really proportional. It’s also really, really, really important to remember this was January 6^th. The inauguration for the transition of power from one administration to the next was on January 20th. And I think it would be fair to say, I don't wanna speak for any one particular person, I'll speak for me, which is, you know, I was worried are, are we, are we gonna have an inauguration? Are, are we going to sort of have the culmination in what constitutes the rule of law?

And so the flurry of activity that you see as documented in court cases in the beginning through the public record was a result of us wanting to, you know, properly but quickly respond so that there would be no additional riots. There would be no additional violence.

James Pearce: I wanna pause on that point for a moment because some people, my, myself included, have criticized the, the government currently for, for using criminal complaints and arrest warrants in, in certain situations. And, and I have suggested, and you know, obviously you disagree with me if you feel otherwise, but really one of the, the biggest values in, in using a criminal complaint and securing an arrest warrant is when you've got a significant concern about future crimes or endangering the public.

So, so I just again, to further contextualize, have, have suggested the case of Judge Dugan up in Milwaukee, whatever you think of the prosecution, isn't the type of case where you're worried about her going rampant and, and committing additional crimes. And so using a criminal complaint and an arrest warrant there, yeah, prob-, probably not warranted

In the January 6th setting the government used a lot of them early on. Assume I'm a critic and say, why on earth would that be appropriate? I think you touched on it, but, but like what were the, what were the considerations at play? Why would using criminal complaints, arrest warrants there be justified if, if not in other situations?

Greg Rosen: Well, so there's, there's two main reasons I think, and you know, there's certainly plenty of nuance, but for the purposes of our discussion, the aspect of criminal deterrence. Deterrence is a huge part of the criminal justice system, right? And to make sure that other people don't engage in similarly situated behavior.

And so the use of criminal complaints, particularly in a public fashion, and, and you might say to me, well, it's public, it's sort of, you know, reputational risk or, or damage. The, the same flip side to that is it, it publicizes in a transparent way what the government is doing, how we are collecting evidence. And so the use of criminal, both arrest warrants, but also public complaints helps to sort of cement the, the objective facts on the ground and publicize to the American people what the government is doing.

And then sort of the second tangent of that is, again, you have to remember early on, like part of an investigation, you don't put the cart before the horse. And so we didn't know who was involved. We didn't know if this was a concerted effort. We didn't know if there were multiple groups. You know, there were obviously later on indictments and then trials involving seditious conspiracy in certain groups, in certain actors.

But we knew nothing of that at first. And so part of the investigation entailed you know, getting as much information as possible. And, you know, good prosecutors, sometimes you have a sort of stove pipe or silent investigation, which is also a very useful tool to do it behind closed doors, which is not uncommon. But sometimes it behooves you to get information out there because it means that you'll be getting more information from the outside.

And particularly when you have the most videotaped crime in American history, you know, there was tremendous investigative value in, in pursuing those.

James Pearce: On January 6th, you had thousands upon thousands of people come to the Capitol. Many thousands of them go inside the Capitol, commit huge amounts of, of, of violence. That creates a lot to do as an investigative matter and as the public record now shows also alleged to a quite a significant number of prosecutions.

How did the office handle that huge influx of work? I, I, I, I assume, and, and know it, it put a huge burden ultimately on the courts. Talk about what, what steps the office took in, including reaching outside of just the, the prosecutors in the, in the District of, of Columbia's U.S. Attorney's Office to kind of handle that, that again, the huge influx in demand on prosecutorial resources.

Greg Rosen: Yeah, I mean, it was a little bit, I, I didn't coin this phrase my former U.S. attorney did, but it's a little bit like building the plane while it was flying. And so we were trying to sort of figure out how to do this logistically and make sure it was done wisely and with efficient resources, but not detract from the other crime that occurs in the United States or in the District of Columbia.

And so initially, as is sort of established in the record, a number of people within our criminal division or superior court division, you know it was largely all hands approach, particularly in the first two weeks. You know, we, we felt it incumbent to respond and make sure that there was a transfer of power.

And I wanna be clear, that's not a political reference. That's not you know, we wanted a certain candidate. We just wanted government continuity. And, and that that is, you know, if, if you're a federal prosecutor, the rule of law is your North Star.

And so after that, when it became clear that this sort of herculean effort required resources, but we needed to make sure that people within the U.S. Attorney's Office were also tending to fraud and violent crime and, you know, quality of life crimes, there were solicitations for what we call detailees from across the United States.

And, you know, certain districts allowed their prosecutors to come over to assist in, in this endeavor. And so it, it sort of ballooned, you know. There's, there's not one, one size fits all in terms of how the trajectory sort of followed. But, you know, there was an initial burst of resources. And then over time those resources dwindled because we were doing our work. We were getting more efficient, we understood sort of the calculus at play.

James Pearce: And at some point, the section that you ultimately would become the, the chief of came into existence. How'd that come about?

Greg Rosen: So I believe it came about under our former U.S. Attorney Matt Graves. So he came into office in the fall of 2021 when he was confirmed by the Senate. And then I wanna say by June, I don't remember the exact date, but roughly around June of 2022, the office sort of crystallized the Capitol Siege Section as a section devoted to prosecuting cases involved in that event.

James Pearce: And just to pause on that a, a moment, again, I think it's, it's implicit in the name, but that was, that section focused solely and uniquely on January 6th prosecutions right, took up none of the other many things that the office did.

Greg Rosen: That's right. I think the statistics that I last remember were by the time we sort of were able to create this section and get this section moving along, it was only about 2% of the entire U.S. Attorney’s Office manpower that was actually being devoted to sort of J6 matters.

You know, the rest of the support either came from other U.S. Attorney's Offices through details, which again, is an approval process internal, you know. There's a, there's, there's sort of a, a process to be had there. And then funding that came from Congress for ultimately the Department of Justice to hire what we call term as term U.S.A’s. So short term assisting United States attorneys working on these cases in that context.

James Pearce: Let's talk for a minute about kind of what you saw and experienced as some of the biggest challenges and then how, how you met them. I mean, I can, I can think of, of all sorts of them and you know, I obviously mentioned you and I worked together and, and tried to tackle them together.

But from, from, you know, from your perspective, as you sit back now, you know, what do you see as, as the biggest challenges as you, as you worked through both, you know, initially that that prosecutorial investigative response and then kind of worked through the cases over the, the many years that these prosecutions lasted?

Greg Rosen: Now I kind of wanna know what your, what you think the challenges are.

I would say that the, the largest challenge is, there are so many moving parts in this investigation. Right? There is the traditional investigation, the information that is obtained by local and federal law enforcement. So whether it's task force officers, police officers, the Federal Bureau of Investigation. And then translating that into charging and then translating that into discovery, and then translating that into trial and then post litigation.

Most prosecutors in their careers, you know, some, especially on the state level, sort of do it all because it depends on how your office is functioning. But a lot of federal prosecutors sort of specialize, whether it's violent crime or appeals or, you know, habeas litigation. You know, you, you become sort of a subject matter expert in your own right.

We needed to sort of become subject matter experts across the board because all of these cases touched one another with this common factual thread. And so if you muck that up, it would send a ripple effect across an entire, you know, a thousand plus cases.

And so, you know the point, and I'm, I'm sure you're gonna touch on this, but like when the Supreme Court ruled in Fischer or the, or the DC Circuit ruled in Brock, it, it had material effects on the prosecution. And if you weren't thinking six steps ahead in terms of where that litigation might be heading and what are the adverse or positive consequences, how might the government respond, you’re not doing your job effectively.

So that sort of whole, across the board, whole cloth effort was both required. It was systematic. The level of uniformity and consistency was an incredible challenge, and it was also a very rewarding challenge. I would say that's actually probably our largest success. To be able to synthesize all of those areas and have a group of prosecutors know, I gotta turn to this person for this help. And I gotta make sure that the position I'm taking here is going to be the same that I'm taking here, which by the way, there's a sentencing tomorrow and that sentencing is gonna involve a guidelines provision that triggers this.

And so being able to have sort of cross the board synergy to use, to use the, the business word right, like was, was paramount.

James Pearce: Yeah. I think sort of a petri dish of, of lots of very similarly situated cases with, with differences that whether those differences warranted a different legal treatment or, or investigative response, I agree was certainly one of the biggest challenges.

And I do wanna get to talk about some of the, the legal and statutory challenges that, that came when, when these cases started to get litigated. But let's back up a little bit to something you mentioned, I think in the context of the response post George Floyd, which was the massive amount of, of video evidence.

And I assume, and personally recall, that discovery and kind of integrating and making available and ensuring that the government is complying with its obligations under, not only Brady and Giglio essentially, you know, the requirement that the government provide exculpatory evidence, but simply just make available the evidence, find and store the evidence.

And I know I've sort of put a lot on the table, but I'm gonna add one other piece to get your reaction to, which is in addition to, to kind of gathering and synthesizing all of this, particularly video evidence. Talk a little bit about efforts, 'cause this has been in the public record about identifying people.

Right, that was, that's, that was one of the big, big questions again, publicly reported on about, yeah. You know, in the midst of COVID, you've got people wearing masks, you've got huge numbers of, you know, it's sort of simultaneously a bit of a paradox. You've got more video evidence than you ever could have imagined and, and, and in history, but also people in winter and on a cold day bundled up in, in face masks and in large crowds making it often a, a challenge to identify people.

So both the kind of investigative piece of ident-, of identification, as well as the discovery piece in managing this, these vast troves of video evidence. How did the office manage that?

Greg Rosen: I mean, I think the public record sort of speaks for itself on that. It's hard to like extrapolate one, you know, one incident to sort of a global lesson. But, you know, on the, in, on the identification side, right? We did not want to identify, misidentify somebody.

And by the way, for those of, I mean obviously the people and the practitioners listing, especially in the criminal sphere. But you know, if we did misidentify, that was a piece of information that we would likely turn over. And in some instances, depending on the circumstances have to turn over under Brady and its progeny.

And so on the identification side, we made sure that we were looking to all avenues of identification. And so it didn't just come down to, I looked at a picture online and I looked at the video and I look at your license, and it the right. Like we wanted to be, you know, confident beyond a reasonable doubt. Our standard, which is actually coincidentally not the standard for initial charging, right? The initial standard for charging is probable cause.

But the department takes very seriously its mandate to do so ethically and make sure that we are sort of crossing our t's and dotting our i's. And so, you know, FBI and its law enforcement partners used every tool at its disposal whether it was surveillance, whether it was a common thing called geofence and, and being able to identify whether there were digital devices present where people didn't opt out, you know, using, you know, digital evidence. Or in many cases, which was a oddity for criminal investigations, outright confessions and/or, you know, public boasting of your involvement in the riot.

And so, you know, we, we did not want to get the wrong person. And so on the charging front that was something we worked extensively with our law enforcement partners to make sure we got right. So with that as a pause, you then have to take that tranche of information and you have to translate that into how do we get this synthesized in a way that our prosecutors can review the material, but then also defense counsel can.

I think what's lost in a lot of these discussions is there's this whole sort of public and political discourse relating to January 6th that ignores the incredible lessons that the department as an institution learned and could be used in, in hundreds of other investigations that don't relate to January 6th.

And so, you know, the a, the ability, we had a specific team and contractors that worked on discovery. And worked on making sure that we were pumping out, you know, discoverable material at a fast clip. Making sure that it was, you know, readily identifiable. Making sure that it was to the extent we could categorized. Making sure that it was available to all defense attorneys, who, by the way, are practicing across the United States.

It's not like I can set up a computer or a terminal and say you can come to the District of Columbia to review this stuff. Well I’m a federal public defender in Alaska, how am I going to do that? And so, you know, it, it required, I mean, it is the most sort of intricate and, and successful discovery project in department history and I'd venture to say in, in criminal history. And that is largely because of public servants who realize, you know, we, one, wanted to get this right and, two, failure to get this right would've been catastrophic.

James Pearce: That. I think that's all, that's all right. And I wanted to just emphasize one point you made toward the end, a detour from the discovery response, but just the note, I think you alluded to it earlier about the nationwide effect of this. I mean, if I'm, if I'm right, and certainly correct me if I'm not defendants in these cases came from all across the country,

Greg Rosen: All 50 states.

James Pearce: All, all 50 states, some perhaps internationally, but certainly all, all 50 states. And were in many instances represented by defense counsel whether public defenders or private defense counsel in, in the states or judicial districts where they lived.

Often prosecuted by AUSAs who were actually not so far away from them physically who may have been on detail to the D.C. US Attorney's office, but based in places like Seattle or San Francisco or Missouri or, or, or whatnot. And so it, you know, the, even not only discovery was, was a massive coordination effort, but even just the handling of these cases.

Greg Rosen: I think that's right and the, the, the, the, the boring, tedious stuff is actually what makes, I think the prosecution shine and, and makes the whole enterprise sort of impressive. Because there's just so many little tiny moving parts that people behind the scenes don't realize are required.

I mean, we had defendants, I mean contrary to the notion that single person who was arrested or charged somehow was sent to, you know, this gulag. The reality is, is those who were in custody, for example, were in custody after federal judges had rendered decisions on their danger or flight. And that's not just judges here in District of Columbia, that's across the United States, appointed by presidents of both political parties.

But once they got into the custodial system, right, if they wanted to review discovery, how were we going to do that? How were we going to make sure that this was readily available so that defense attorneys could share it? And share it with, you know, sufficient protections and protective orders that it got done? I mean, you to think through that before you even get to the law and before you even get to trials is, you know, that's the ball game.

James Pearce: All right, so, so we've been talking for a while and I think we, you know, given a, a sort of a glowing report card to the government on, on the handling of discovery and the handling of, of the massive coordination effort that the January 6th attack on the Capitol presented. Alright, let's, let's, let's turn the tables a little bit on you here, Greg.

Greg Rosen: Let's do it.

James Pearce: What do you say if I come to you and say, look many, many thousands of January six defendants were prosecuted under this statute. I believe it was 18 United States Code 1512(c)(2), a congressional obstruction statute for otherwise corruptly obstructing or impeding a, an official proceeding, a congressional proceeding.

Maybe you'll tell me that 15 or 16 judges in the District of Columbia upheld that statute. Maybe you'll tell me that even the D.C. Court of Appeals, at least a couple of judges ultimately blessed or affirmed that use of the statute. But the highest court of the land, the Supreme Court came, came back and said, actually this statute requires some kind of, of nexus to documents or documentation. If you kind of look at the context in which the statute was enacted in 2002.

And I believe the public record shows that after that decision, the U.S. Attorney's Office largely dismissed that count from many of the, the cases where it had been charged. Is that a, a failure or a black eye? One for which I the host here bear perhaps some degree of responsibility, but is that a black eye on the government's prosecution of these January 6th cases?

Greg Rosen: It's not. So, so look, Fischer was certainly a legal setback in terms of the government-

James Pearce: Fischer being the court, the, the case that ultimately got up to the Supreme Court itself.

Greg Rosen: Correct. So, so let me say it this way, and I'm not gonna go into internal deliberations of, of department attorneys.

But you know, when a, when a prosecutor goes to use a statute right, and prosecute a crime, one of the things they wanna do is make sure they got it right. And not just make sure they got it right in terms of, the facts sort of meet the elements of the crime, but make sure that the statute itself withstands legal scrutiny, whether it is over broad, or whether it's vague, or whether or not it is within the statutory construction interpretation and the way I’m viewing it is the way the court will find it.

And so that was done in this case. And, frankly as you can not be surprised, that was done to a degree that likely is not done in many other cases. And that was because we wanted to get it right, right? We wanted to get this right. We wanted to use it carefully.

For those sort of detractors who said, this is a novel use of the statute. I, I think that would be largely fair to say, and that is something that was conceded at oral argument before the Supreme Court. But it also was a novel fact pattern. We have never had a circumstance where the peaceful transfer of power from one administration to the next was interrupted in such corrupt and visceral ways.

And so prosecutors were left with the choice to assess which statutes apply in this very novel circumstance. And stepping back and looking at the forest from the trees, the initial determination, which I stand by to this day, was that 18U.S.C. 1512(c)(2), which prohibits corruptly, interfering, impeding, or obstructing a congressional or an official proceeding applied.

And we litigated that. That is in the public record extensively. We had oral arguments that you know you were a part of. And you are right to say that many judges agreed with us and agreed in pretty fulsome written opinions as to why we were right. That being said litigation always has its risks, it always has its costs.

And the case was appealed to the U.S. Supreme Court. And consistent with the way that the government practices the solicitor general went, and she actually argued that case. She did an incredible job. And the judges and the justices on both sort of sides of the political spectrum had very both intuitive and probing questions of both parties.

So when the Supreme Court ruled in a 6-3 decision, in this case, Fischer v, the United States, it was unfortunate. They narrowed the scope of the construction of the actus reus in question. You know, they tethered it to a very sort of specific subsection that occurred proceeding (c)(2), which was (c)(1), and said it had to be connected to documents, records, or other things, the, the obstruction itself.

And so, you know, while we disagreed with that, we had to implement it. That's what the rule of law means. I can't spend four years talking about how the rule of law matters and when the Supreme Court of the United States issues a ruling, I go, oh it doesn’t matter. Like that, that is anathema to our constitutional process.

So we worked to implement it. And there were certain cases where we continued to proceed as is publicly documented, because we believe it did meet that legal standard. Justice Jackson's concurrence gives a little gloss as to that. But you know, even if I agreed wholeheartedly with Justice Coney-Barret’s dissent, at the end of the day, you know, we did what was just and right.

And so is that a failure. I mean if you're, if you're looking at it in terms of pure wins and losses, which by the way is a terrible way to look at the criminal justice system because it does, obviously we, we know it affects individual defendants. But throughout the pendency of this investigation and case we believe what we were doing was right and legally supported through and through.

And so the, the reality is the end result is both an unfortunate but also proof that litigation works and the system does work.

James Pearce: Yeah. Thank you. I think that's a, that's a powerful response. It won't, won't surprise you to know that, that I also continue to have the view that Justice Barrett and those that signed on with her probably had the better view, but that doesn't matter.

And, and the more serious point is, is I think you're, you're exactly right. Kind of the, the way that the, the government responds, not irrelevant in, in the context of today, which is when you have a court ruling, whether you like it or not your job as the executive branch and the government is to, is to comply with it and, and implement it faithfully and in a principled way.

Before we turn away from, from January 6th and, and kind of wrap up here, you know, I wonder if, as you sit here, there, there are any, any cases or, or incidents that kind of, that stay with you as, as kind of particularly emblematic. You know, I know as a supervisor you didn't handle as many cases directly as a lot of the prosecutors did, but you had a, a global view of the prosecutions that probably no one else did.

And so again, sitting here today, are there any particular cases that you think worth kind of highlighting that, that, that may maybe illustrate the, the government's work, the, the lasting significance of, of January 6th?

Greg Rosen: So I think one of the things about January 6th that, kind of, gets lost in the shuffle of pardons and lost in the shuffle of, sort of, the political animus that has developed over time, I mean, the statistics are about 140 officers were injured on that day.

But that doesn't actually tell the story, right? Because the story to me is sort of this giant mob, this giant riot that descended upon, you know, from my perspective, the greatest legislature in the history of the world, right? Like the Senate, the House, I mean, these are not, you know, the, the, the, to use President Reagan's term, the beacon on the hill, right? Like, these, these are the things that we should aspire to get right and, and do it right.

And to watch that building and the chaos that unfolded in that building while police officers who are just doing their job get taunted, screamed at, mercilessly beaten, over the course of four to five hours of just constant, constant overwhelming force by both individual rioters and sort of the force in numbers of the mob is I mean, it's hard to describe.

I, I, I won't get, you know, I won't get out of my head, the, you know, Officer Fanone, you know, being dragged out. His body being dragged out and tased in the middle of the scrum at the Lower West Terrace. Or Officer Hodges, you know, being pinned against that door screaming for his life.

I've seen officers who are, you know, like, like football linebackers, just rioters, just tackle them with full force, you know, on ledges. Defendants who climbed up to media towers to fire weapons. And I think, you know, I, I, I've heard the common refrain that there weren't a lot of weapons there. I, I would strongly disagree with that. And I think the record speaks for itself. I think there's about 180 charges involving the use of dangerous weapons.

And so those, those vignettes, those factual accounts to those officers, who are not political actors. They're not, you know, trying to sort of milk this, this scenario. I mean, this, this actually happened to them. It's documented through various angles and videos. And, you know, it is, it is so palpable and so visceral.

And even years later, you know, a lot of those officers still incur the not just the political costs of speaking out, but also the emotional and mental costs of what happened to them on that day. And it stays with them. And, and that's hard to, that's hard to shake.

I think one of the more salient stories we had previously talked about, but there's, there's a, a documented in public scene in, in the House chamber. So when the rioters made it into the U.S. Capitol, you know, everything went on lockdown, including the senators and the congressmen and women, and, and essentially had to go into hiding. And, and a lot of people were still stuck in their respective chambers.

And I just distinctly remember a video and in a, a time where there were still members in the House chamber. And this was at the time where Ms. Babbitt had attempted to get through and law enforcement used their firearm and shot and unfortunately killed her. But you know, used force. And I distinctly remember at least one law enforcement officer yelling, pins off, pins off.

And that was a signal to members of Congress to remove their congressional pins because we didn't know and they didn't know that if a rioter got a hold of a member of Congress and elected, you know, legislator, what would happen to them. And like it's still to this day, very chilling.

James Pearce: Yeah. Thank you for, for sharing that. I mean, I think it's hard, hard for me to, to hear that without, without getting emotional. And, and I think really does, again, illustrate how, as you said, chilling and overwhelming the, the events of that, that day were. And there's really no way to escape that for, for anybody who looks at the event up close rather than abstracted and, and for some particular purpose.

So, you know, I was gonna ask you about the pardons, but I, but I think both in what you've already said in the context of our conversation and, and I, I would commend any listeners to look at some of the things that have been that reported. And I think your, your, your strong kind of response as, as inappropriate and entirely inconsistent with the nature of the prosecutions.

So, so in, in the last few minutes, kind of wanna just ask about a couple of other things, which is okay. The pardons were of course one of the early legal actions taken by the new administration. And another of those actions were to, to bring in, and this part is very typical of a, of a, a transition from one administra-, administration to another new leadership at the, at the office itself.

For, for a period though no longer there was gentleman named Ed, Ed Martin, who was at the, at the helm. Now there is I believe Jeanine Pirro, who is acting. To the extent you're, you're kind of comfortable talking about it, kind of what, what was, what was your assessment of, of those folks as leaders of the, the D.C. U.S. Attorney's Office?

Greg Rosen: So, I mean, I'm biased and, and this is not because of J6, this is because attorney's office is my home and it’s a wonderful place with incredible public servants. And they are sort of bandied about now in this sort of political football world.

I was there when, so I was hired. Nobody, when you're a federal prosecutor, unless you're a political appointee, you don't really get hired into an administration. You get hired as an assistant United States attorney. I was hired during the last few years of President Obama's term, but I wasn't an Obama prosecutor.

And I transitioned over to the Trump administration under a wonderful U.S. Attorney Jessie Liu. And under her leadership, you know, priorities shift, priorities changed, but continued to do the work. And the reason I'm saying all of this is because I fully expected that there would be transitions and policy shifts as a result from moving from the Biden administration to Trump administration 2.0.

And I mean, realistically, everybody was prepared to implement. You know, we have an ethical duty. We have as lawyers, you know, an ethical and legal and moral duty to sort of do what's right and consistent with professionalism and our code of conduct. But we were prepared to, to, to do our jobs and whatever that might entail.

I was candidly, I was not prepared for sort of how it all unfolded. But I guess I'll say this, there is nothing that I can say that Ed Martin has not already publicly shouted from the rooftops that people can judge his leadership on. And I think it is important that the leader of the U.S. Attorney's Office, the largest federal prosecution office in the United States, be someone who understands the needs of its prosecutors, who understands prosecution, and who also understands and cares about the citizens of this great city.

And, and like that is at the end of the day, I don't care whether you have an R or D next to your name. If you are committed to the safety and security of D.C. and its neighborhoods and you're committed to the, the effectiveness of just people who work for you, that that's the be all, end all. And so I think that's all I can say about Ed Martin's tenure

James Pearce: Fair to assume sort of the same, same principles applied to Ms. Pirro and her relatively younger tenure as at the helm of the office.

Greg Rosen: Look, I don’t want to, I think actions speak louder than words, though in this day and age, there's a lot of words going on. And I am hopeful that she settles into her new role and promotes the interest of the office and protects her prosecutors. And so the fact that she was previously prosecutor and a judge a long time ago, I think is a largely a, a good thing. I think time will tell and I wish her the best of luck.

As to whether there is a sense of calmness in the office. I left, as you know, recently from the U.S. Attorney's Office, so she wasn't really, I wasn't there for that long under her tenure. But I am hopeful. I mean, her press conference after the heinous shooting of the, of the two individuals at the Jewish Capitol Museum. You know, she, she seems to be taking a measured approach thus far, and I hope that continues.

But I do, I implore her, you know, this is not a political job. It, it's intended to survive outside of the political realm, and it's not the deep state. It's, it's people who just wanna, you know, make sure that the job is done and people are safe.

James Pearce: Last question for you, Greg. So, so speaking of transitions, as you said, you've recently transitioned yourself after-

Greg Rosen: You like my mug?

James Pearce: Like the mug? Yeah. After, after the, a decade in public service to if I got the, the mug right, Rogers Joseph O'Donnell. What's kind of next for you? What professionally?

Greg Rosen: So I'll be a shareholder at RJO, Rogers Joseph O'Donnell. So they are a boutique litigation firm based largely out San Francisco in California. They have a D.C. office.

They have a lot claims to fame, but they're very robust in the government contract sphere. And so I'm gonna be taking sort of my experience in trial litigation and parlaying that into the white collar space and how the white collar space dovetails with the contracting space.

I think we're gonna start to see increased use of the False Claims Act statute. I think we are going to see procurement fraud prosecutions and government investigations, potentially related to diversity, equity inclusion efforts. I think that's been talked about.

But my focus will be on sort of robust defense when government scrutinizes companies or individuals. And so the firm so far is a lovely place to work. Everybody's been incredibly friendly and there's a really nice structure in place that also has flexibility for clients. And so I'm, I'm really looking forward to the next steps.

James Pearce: Well, Greg thank you for your, your service as a prosecutor, both at the state level and the federal level. Thank you for taking the time to come and, and chat with us on the Lawfare Podcast and best of luck going forward.

Greg Rosen: Thanks, James. You as well.

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