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DOJ Moves To Dismiss First Case In Jan 6 Prosecution: “The government believes that dismissal without prejudice at this time serves the interests of justice”

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The Department of Justice pulled a shocker on Tuesday when lawyers prosecuting the Capitol riot asked the judge to dismiss a case against defendant Christopher Kelly of New York. The Department is trying to resolve these cases and has reportedly gotten two defendants to plead guilty, but this is the first time they have made a request to drop a case against one of the alleged rioters.

The Justice Department has hundreds of cases open related to the riot and their focus seems to be on certain groups like the Oath Keepers. Kelly was accused of entering the Capitol and obstructing Congress during the incident because a confidential source told the FBI he was posting on Facebook about it. But it turns out the feds only had a picture of Kelly outside the Capitol, not inside, which led investigators to conclude he was just telling friends he was inside when he was not. Remember, the Feds have all the geolocation data from the cell phones so they would know if he went in or not to a large degree of certainty.

“The government and defense counsel have discussed the merits of the case, and upon reflection of the facts currently known to the government, the government believes that dismissal without prejudice at this time serves the interests of justice,” prosecutors wrote in a filing on Tuesday.

From CNN:

The Justice Department for weeks has been indicating in court it was attempting to bring to a close several of the hundreds of Capitol riot cases, including Kelly’s. Typically, that means defendants would negotiate guilty plea deals to end their proceedings before a trial.

So far, only two Capitol riot defendants appear to have cut plea deals, with one becoming a cooperator against the Oath Keepers paramilitary group. A plea hearing is scheduled for another defendant Wednesday.

From Buzzfeed:

Kelly was allowed to go home while his case was pending. In April and then again in May, the government asked the judge to extend deadlines in Kelly’s case; in the May request, the prosecutor said they had engaged in “substantial plea discussions” with Kelly’s attorney.

A dismissal without prejudice means the government could bring charges against Kelly again in the future. The parties are due in court tomorrow to update the judge on the status of his case; the judge will have to approve the government’s request to dismiss it.

While Kelly’s is the first case the Justice Department has dropped outright, more cases could be headed for a conclusion soon as prosecutors negotiate plea agreements with other alleged rioters.

Only one case has ended with a deal so far; Jon Schaffer of Indiana pleaded guilty in April and agreed to cooperate with investigators. But prosecutors have been extending other offers in recent weeks and at least one defendant, Paul Hodgkins of Florida, is scheduled for a plea hearing this week.

According to the charging papers in Kelly’s case, an unnamed confidential source had provided information about Kelly from his Facebook account three days after the Capitol insurrection. The FBI agent who signed his arrest affidavit said they’d matched the profile photo from Kelly’s Facebook account with his New York driver’s license photo.

The source gave the FBI a screenshot of a Facebook group chat from Jan. 6 where someone named “Chris,” whom the bureau believed to be Kelly, wrote, “We’re in!” Another person replied telling him to be safe, and then “Chris” sent a photo of what appeared to be the inside of the Capitol.

A federal magistrate judge signed a search warrant for Kelly’s Facebook account, and the FBI affidavit quoted other messages Kelly allegedly sent via the platform that suggested he was inside the Capitol during the riots; in one exchange dated Jan. 6, someone asked, “Are you inside?” and Kelly replied, “Sure spread the word, Taking this back by force now, no more bs.”