Federal Bureau of Investigation
The case of the accused Jan. 6 pipe bomber, Brian Cole, is prompting questions after some bizarre moves from the Justice Department.
Lawfare's Roger Parloff documented some of the details in Cole's latest court filing, showing apparent flubs by the DOJ.
In a Friday morning thread, Parloff observed that Cole's filing alleges he's entitled to release because the government failed to obtain a proper grand jury indictment or judge's probable cause finding within the allotted time.
"Odd situation," Parloff said.
"Under Federal Rules, absent defense consent or 'extraordinary circumstances,' you can’t detain someone for more than 14 days without a finding of probable cause, either by indictment or public preliminary hearing," he explained, noting that prosecutors prefer an indictment so they can keep the filings secret.
Cole has now been in custody for almost a month, since Dec. 4. His first appearance before a judge was the following day. Parloff remarked that the judge set a hearing for Dec. 15, but never mentioned a preliminary hearing.
"Seems like everyone assumed the government would indict Cole by 12/15 — but it didn’t," Parloff wrote. "Instead, on 12/10 the parties agreed to put off the indictment deadline and the detention hearing until 12/30. On 12/24 and 12/27, the defense says it asked the government if the detention hearing would double as a preliminary hearing if there’d still been no indictment."
At that point, on Dec. 28, the government told Cole's attorneys that the Dec. 30th hearing wasn't a preliminary hearing but no other federal grand jury would be sitting from Dec. 16 to Jan. 5.
"Cole’s attorneys said they hadn’t waived the indictment/prelim hearing deadline beyond 12/30," wrote Parloff.
He observed that the DOJ appeared to have finally figured out they had a problem and were able to secure an indictment on Dec. 29, before the deadline. However, it came from a superior court grand jury, not a federal grand jury.
They then began citing the case United States v. Stewart as an example, said Parloff. The problem there is that prosecutors went to a superior court for an indictment because the grand jury refused to indict.
The collective ofamateur sleuths, the Capitol Hunters, couldn't help but ponder, "How much of the indictment mess might be attempts by some at DOJ to slow down or derail the Cole case?"