In “Disorder in the court,” I wrote about the government’s efforts to secure against warrants against five participants in the Cities Church riots. At the time all I had to go on was Chief Judge Patrick Schiltz’s letter responding to the government’s petition for mandamus in the Eighth Circuit. He also wrote a second letter that is posted online here.
Among other things, Judge Schiltz writes, “Two of the five protestors were not protestors at all; instead,
they were a journalist and his producer. There is no evidence that those two engaged in any criminal behavior or conspired to do so.” I think the FBI affidavit in support of the criminal complaints supports the conclusion that they were participants and co-conspirators. I posted the FBI affidavit here.
Neither Judge Schiltz nor I had seen the government’s petition for mandamus at the time. The government’s petition had been filed under seal. I erred in expressing my own opinion before seeing the government’s petition.
The Eighth Circuit has now unsealed the government’s petition. I have posted it below via Scribd. Contrary to what I wrote over the weekend, I think the government had good reason for seeking emergency relief even if the Eighth Circuit correctly denied it, which did unanimously.
In his concurrence with the panel’s denial of mandamus, Judge Grasz stated that the government has established probable cause for the arrest of all five uncharged participants. However, he continued, “the government has not established that it has no alternative means of obtaining the requested relief[,]” i.e., the arrest warrants.
I understood that to mean that the government can either await Judge Schiltz’s ruling on the appeal of the magistrate judge’s denial of the arrest warrants or seek indictments from a grand jury. Extraordinary relief in the form of mandamus ordering Judge Schiltz to do anything was therefore inappropriate. That’w what the panel held. I think I had that much right and regret saying more. I believe that United States Attorney Dan Rosen and the Trump Department of Justice were acting in good faith under the circumstances. This is the other side of the story with more to come this week.
Emergency petition for manamus on arrest warrants by Scott Johnson
