DC Appeals Court To Cop: Yeah, It’s Obstruction To Delete Messages Telling Capitol Rioters To Delete Evidence Of Crimes
Oh, these “law and order” types. What a joke. The self-proclaimed “law and order” candidate is Donald Trump, a convicted felon and open supporter of those who committed federal crimes during the January 6th raid of the Capitol building.
And, of course, he’s earned the endorsement of another “law and order” figurehead, the Fraternal Order of Police — an entity that spends most of its time ensuring officers are above the law, including those officers who showed their “love” for “law and order” by participating in the Capitol raid.
Here’s yet another “law and order” dude who not only sold out his fellow Capitol police officers by expressing his support for rioters, but told rioters to delete social media posts containing footage of the crimes they committed. And, having been convicted for obstructing a federal investigation, Capitol police officer Michael Riley is pretending he doesn’t understand the law in hopes of getting his conviction tossed.
The good news is that this attempt has failed. Officer Riley has presumably touted his “training and experience” in the past, but once he was the subject of a criminal prosecution, he tried (and failed) to convince two consecutive courts (and one jury) that he simply had no idea deleting messages sought in a grand jury investigation was a criminal act. (h/t Short Circuit)
The opening of DC Appeals Court decision [PDF] upholding his conviction summarizes things nicely:
Michael Riley, an experienced former Capitol Police officer, appeals his conviction for obstruction of a federal grand jury investigation of the January 6, 2021, attack on the United States Capitol. The day after the attack, Riley tipped off one of the rioters that “everyone who was in the [Capitol] building is going to be charged” and urged him to “take down” a Facebook post acknowledging that he had been inside the building. When Riley learned his communication with that individual might be investigated, he tried to cover it up by deleting direct messages from his Facebook account and calls from his phone’s call log. A jury convicted Riley of one count of obstruction of an official proceeding in violation of 18 U.S.C. § 1512(c)(1) based on the deletions but was unable to reach a verdict on another obstruction count based on the underlying tip.
It already looks bad but the details are much worse. To begin with, Officer Riley was on duty during the raid and witnessed the assault on the Capitol building firsthand. Even if he didn’t directly witness attacks on his fellow officers, he was surely aware they had taken place.
The last thing he said that made sense before he started covering up his own actions was pointing out on Facebook that “everyone who was in the building is going to be charged.” That post was delivered the morning after the insurrection attempt.
Things changed when one of his friends uploaded a video of the Capitol building raid and claimed he had been “funneled” into the building by the crowd. Riley reached out to his Facebook friend (Jacob Hiles) in a private message:
“Hey Jake, im [sic] a capitol police officer who agrees with your political stance. Take down the part about being in the building they are currently investigating and everyone who was in the building is going to [be] charged. Just looking out!”
Hmm. Is it smart to respond to people admitting crimes with messages telling them to delete evidence? Probably not even if you’re not a cop, but especially not if you’re a cop whose fellow officers were assaulted by people “who agree with [the pro-Trump] political stance.”
It didn’t end there. Over the next several days Officer Riley exchanged “hundreds of messages” with Jake Hiles, discussing the Capitol raid and, um, “their shared interest in fishing.” The FBI arrested and questioned Hiles on January 20th, presumably uninterested in any “shared interest in fishing.” Hiles then sent Officer Riley a message informing him of this development as well as noting the FBI “was very curious that I’d been speaking with you.”
That’s when Officer Riley’s instinct for self-preservation finally kicked in and overrode all the training and expertise in federal crimes he had been ignoring while spending time with his Facebook friend.
The next day, Riley deleted his entire string of Facebook messages with Hiles and removed two calls with Hiles from his cell phone’s call log.
Not enough training and expertise, apparently! First, don’t talk to potential felons unless you — an actual police officer! — are trying to build a case against them. Second, don’t tell felons to delete evidence. Third, don’t delete evidence of you telling them to delete evidence. And, finally, have at least enough “training and expertise” to realize that not only is this deletion a crime, but a futile one at that. Service providers retain phone records so deleting calls from call logs only hides them from yourself. The same goes with deleting messages from your phone. They still exist on the other end of the conversation and were presumably recovered in whole from his Facebook friend’s phone.
The only thing this accomplished was the generation of evidence to support obstruction charges. One of those charges stuck during the jury trial. Pleading ignorance now is just a waste of everyone’s time, says the DC Appeals Court. Just because Riley didn’t specifically know whether or not his messages were targeted by a grand jury investigation, he had more than enough information to believe law enforcement might be interested in them. Pretending otherwise is ridiculous, especially when you’ve made it clear to others that federal crimes had been committed and investigators would be hoovering up any messages, posts, or other communications that might be related to the Capitol building raid.
Riley responds that no more than a general law enforcement investigation was foreseeable. His own messages undercut that argument. A jury could reasonably infer from Riley’s having warned Hiles that “dozens of people” were “being charged federally with felonies”— including “everyone that was in the building”—that Riley knew felony charges were imminent and, based on his experience, that a federal grand jury would have to bring those charges.
This argument fares no better:
Riley finally insists that, even if he could have foreseen a grand jury investigating Hiles for entering the Capitol, the evidence was inadequate because the material he deleted fell outside the foreseeable scope of such an investigation. We are unpersuaded. A grand jury’s investigatory scope foreseeably includes attempts to obstruct its own proceedings.
A Capitol Police officer’s messages with a January 6 offender would fall within the scope of a grand jury convened to investigate crimes relating to the Capitol breach; indeed, Riley knew that any January 6 grand jury would cast a wide net and warned Hiles that investigators were “going through everything.” Riley himself testified that he deleted the messages within a day of learning of the FBI’s interest in him, in part because he was “concerned that the FBI was going to think . . . that I had something to do with January 6.” A jury could thus rationally infer that it was foreseeable to Riley that a January 6 grand jury investigation might eventually seek his messages with Hiles.
The conviction is upheld. What that means immediately for former Officer Riley is that he’s a convicted felon and will have to serve his term of probation. He should be happy he’s not actually in jail, like so many others convicted on obstruction charges. Hopefully, the long term effects will keep Michael Riley from being re-employed as a law enforcement officer. He clearly doesn’t deserve to be one. He can go on being a “law and order” hypocrite, but shouldn’t be allowed to expect the public to keep signing his paychecks.