A federal judge has dismissed arguments by two former Rocky Mount police officers that their social media comments were wrongly used to link them to the Capitol Hill insurgency.
Thomas “TJ” Robertson and Jacob Fracker had argued that their dissatisfaction with the results of the 2020 presidential election, which they expressed in strong terms on Facebook, should be protected by the First Amendment.
But in a written ruling on Friday, U.S. District Judge Christopher Cooper denied their motions to dismiss felony charges of corruptly obstructing an official process.
“If Robertson had expressed his views only through social media, he almost certainly wouldn’t be here. election,” Cooper wrote.
“His words remain relevant to his intent and motive for these alleged actions.”
The decision, which was made on a motion first filed by Robertson and later adopted by Fracker, clears the way for a jury trial set to begin April 4. More than 725 people have been charged with participating in the riots, and the two are among the first scheduled for jury trials.
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Jury selection in the first case, which involves a Texas man affiliated with a militia-like group, began Monday.
Robertson and Fracker claimed they did nothing wrong on Jan. 6, 2021, and that their entering the Capitol building as it was stormed by Donald Trump supporters “had no direct bearing on what prosecutors call an attack on democracy.
After a selfie photo posted to Facebook showed the duo posing in front of a statue in the Capitol’s vaulted crypt, they were arrested and fired from their jobs at the Rocky Mount Police Department.
Their motion to dismiss the felony charge rested on three arguments: that an indictment against them did not specify the “official process” they allegedly obstructed, that the joint session of Congress held to certify an election won by Joe Biden was no such procedure. , and that the charge was unconstitutionally vague.
It was in the third branch of the defense that Robertson and Fracker asserted their free speech rights.
The views they expressed on social media “were mere speeches, and however unpopular they may be, they cannot be considered ‘criminal conduct’ punishable by the government”, the motions state.
Prosecutors argued, and Cooper agreed, that the defendants faced charges for what they did — not what they said.
In one of many Facebook posts about his political views, Robertson wrote that ‘VIOLENCE’ was the next stage in a revolution that began shortly after Trump lost an election he and many of his supporters believe been stolen from him.
Trump urged his supporters to “fight like hell” in a speech shortly before the uprising. The courts found no credible evidence of widespread voter fraud.
Shortly after the insurgency, Fracker wrote that he hadn’t been so “plugged in” since his days as a combat veteran in Afghanistan. “It was amazing,” Fracker wrote, according to court records. “Flash bangs, CS gas, rubber bullets going by. It felt so good to be back in the s—- hahaha.
Federal authorities have pushed back against the two’s accounts that they entered the Capitol peacefully and encountered no resistance from police officers before leaving soon after.
Robertson used a large wooden baton to block a formation of Metropolitan Police Department officers attempting to defend the lower west terrace of the building from the advancing mob, prosecutors wrote in court papers earlier this month.
Both men were wearing gas masks when they entered the building, according to the government.
In arguing that the felony charge against them was unconstitutionally vague, attorneys for Robertson and Fracker cited the case of John Poindexter, a national security adviser to former President Ronald Reagan who was indicted 32 years ago. years in the Iran-Contra scandal.
Poindexter was found guilty of lying to Congress and obstructing its investigation into the incident, which involved secretly selling weapons to Iran and using the proceeds to aid insurgents fighting to overthrow the government Nicaraguan Sandinista.
The convictions were later overturned by an appeals court, which found that Poindexter’s allegedly “corrupt” actions were too vague to support a conviction.
But the scope of the appeal decision has since been limited by other cases, Cooper wrote, concluding that Robertson and Fracker’s reliance on it “is insufficient.”
Cooper’s 13-page opinion addresses just one of several charges against the two men, who to date have not disputed the rest in detail.
Fracker is charged with obstruction of official process – a felony – and three misdemeanors: entering a restricted building or property, disorderly conduct in such a place, and disorderly conduct in the Capitol.
Robertson initially faced the same charges. Two of the offenses were ruled felonies, and a new felony charge of participating in a civil disorder was added last month with the allegation that he was armed at the time.
Robertson has been held without bail since last summer after running into trouble with guns he ordered online, despite a judge’s order to have nothing to do with the guns pending. his trial.
In allowing the felony charges to stand, Cooper noted that he was “not writing on a blank slate.”
Similar motions have been dismissed by other judges in insurrection cases, her decision said, and “this Court finds their opinions persuasive.”