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To start at the beginning, last August, the Jan. 6 committee filed its initial request to the National Archives and Records Administration for presidential records tied to the insurrection.
Among its inquiry, the committee specifically asked the Archives for “all photographs, videos, or other media, including any digital timestamps for such media, taken or recorded within the White House on Jan. 6, 2021, or taken of the crowd assembled for the rally on the morning of Jan. 6 and all communication or other documents related to that media.”
Moreover, the committee specifically requested “all photographs, video or other media including digital timestamps for such media” of Mike Pence and any individuals accompanying him on Jan. 6.
Then in November, journalist Jonathan Karl released his book Betrayal, about the final days of the Trump administration.
In its pages, Karl described having seen a photograph of Pence taken by an official White House photographer.
The image reportedly depicts Pence, second lady Karen Pence, their daughter Charlotte Pence Bond, and a few of Pence’s staff members taking refuge during the Capitol attack thanks to the quick help of Secret Service agents who whisked them away from danger.
“The photos show Pence in a barren garage. There were no windows and no furniture. This was a loading dock with concrete walls and a concrete floor,” Karl wrote.
When Karl appeared on The Late Show with Stephen Colbert, he reiterated what he observed, describing Pence in the photo as standing “in a loading dock in an underground parking garage beneath the Capitol complex. No place to sit, no desk, no chairs, nothing.”
“This is the vice president of the United States and he’s holed up in a basement,” Karl said.
The journalist’s request to publish the pictures was denied by Pence through a spokesperson.
Pence has never denied publicly that the photographs exist.
Talk of the photos resurfaced on Jan. 4, 2022 when Couy Griffin, founder of Cowboys for Trump, asked a federal judge to compel the government to produce the Pence photos to assist his defense.
Prosecutors charged Griffin—who also serves as a commissioner for Otero County, New Mexico—with two misdemeanors for breaching Capitol grounds.
Griffin maintains he never entered the Capitol building unlawfully but went to peacefully protest and was effectively swept up into a prohibited area.
He and his accompanying videographer Matt Struck saw an open door at the top of the stairs on the Capitol’s outer deck and went through it, according to a police affidavit.
Griffin then faced the crowd, grabbed a bullhorn, addressed those around him and began leading a group in prayer, the affidavit notes.
In a Facebook video for Cowboys for Trump that has since been removed, authorities say Griffin was heard saying in the clip that he climbed to the top of the Capitol for a “first row seat.”
He was there for over an hour.
That same video also had Griffin expressing a desire to return to the Capitol for the inauguration of Joe Biden, saying: “You want to say that was a mob? You want to say that was violence? No sir. No ma’am. No we could have a Second Amendment rally on those same steps that we had that rally yesterday. You know, and if we do, then it’s gonna be a sad day, because there’s gonna be blood running out of that building. But at the end of the day, you mark my word, we will plant our flag on the desk of Nancy Pelosi and Chuck Schumer and Donald J. Trump if it boils down to it.”
Griffin’s videographer admitted to the FBI that the men may have committed “minor trespassing” on Jan. 6.
Griffin has a bench trial before Judge Trevor McFadden in Washington, D.C., on March 21.
He insists that the government can only keep its case against him if it can prove that he “entered or remained” in the Capitol or on Capitol grounds while Pence was also present.
“If such photographs exist, they constitute Brady material in this case. If the journalist’s description of the images is accurate, the former vice president left the Capitol Building, passed through the subterranean tunnel network, and entered the Senate underground garage,” Griffin argued in a motion on Jan. 4. “That garage is not part of the structure of the Capitol Building. It lies between the Capitol Building and the Russell Senate Office building underneath the Senate Foundation.”
The government responded Tuesday, telling Griffin that Brady material is defined as material in the government’s possession that has some exculpatory or impeachment value.
“The photographs requested by the defendant from the official White House photographer are not in the government’s possession, therefore, they are not considered Brady and the defendant cannot move to compel their production… similarly the defendant’s request for these photographs under Federal Rules of Criminal Procedure 16(A)(1)(E) should be denied as Rule 16 only requires the government to disclose photographs within its possession,” assistant U.S. attorney Matthew Graves wrote.
Graves rejected Griffin’s contention altogether, too, saying that even under Griffin’s proposed context, Capitol grounds are still prohibited from trespass whether Pence was physically there in the moment or not.
Andrew Laufer, a civil rights attorney, spelled it out for Daily Kos in an email Tuesday: “The government is required to disclose all exculpatory evidence, things which will assist the defendant with his defense. If the judge determines that the photo of Pence meets the criteria, an order will be issued compelling the Department of Justice to produce it.”
So, this begs a series of questions.
Do prosecutors have the photos and have opted not to share them with Griffin because they are purportedly irrelevant to his defense? Would a court order change what prosecutors say?
Or do prosecutors genuinely not have the photos in their possession? If not, who has them? Does the National Archives have them?
As noted, the Jan. 6 committee asked the Archives to remit such documents as a part of its probe into the Capitol attack, but the exact nature of what has been shared with the committee is not yet clear and a legal fight is still being waged between the committee and the Trump administration over the privilege of presidential records.
The Archives did not respond to multiple requests for comment Tuesday.
When asked about the photos, a spokesperson for the Jan. 6 committee pointed to the committee’s initial request to the Archives from Aug. 25, only confirming that it made the request for pictures or media of Pence from Jan. 6.
The White House and the Department of Justice did not respond to requests for comment and a spokesperson for Pence did not immediately respond, either.
It should be noted that Pence has reportedly been willing to cooperate with the Jan. 6 committee thus far and the panel’s chairman, Rep. Bennie Thompson, told reporters last week that the committee is still deciding on whether it should formally subpoena the former vice president.
“I think at some point the committee will make a decision whether or not we already know enough about it or if we need to hear from the former vice president on it,” Thompson said last Monday.
Several of Pence’s senior-most staff have already met with the committee at their request including Pence’s former national security adviser Keith Kellogg, his former chief of staff Marc Short, and onetime press secretary Alyssa Farah.
That makes Pence’s decision to keep the photos out of view, when Jonathan Karl asked to publish them, all the more curious.
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