'Odd situation': Lawyer says would-be bomber may be freed by DOJ's 'controversial' error
Brian Cole Jr., who is accused of planting multiple pipe bombs around Washington, D.C., leading up to the January 6, 2021, insurrection, could potentially be freed from incarceration due to the DOJ's error, according to a legal expert.
Lawfare's Roger Parloff, who once reported that Judge Cannon had created a "secret docket" in the process of overseeing a Trump criminal documents case, flagged a motion by Cole in which his attorneys argue that the DOJ failed to properly indict Cole. Recent reports also discuss Cole's confession.
"Accused J6 pipebomber Brian Cole is claiming that he is entitled to release due to govt’s failure to obtain within the allotted time period either a proper grand jury indictment or a judge’s probable cause finding after a 'preliminary hearing.' Odd situation," according to Parloff, who noted that, "Under Federal Rules, absent defense consent or 'extraordinary circumstances,' you can’t detain someone > 14 days without a finding of probable cause, either by indictment or public preliminary hearing. Prosecutors prefer indictments because they’re secret."
Parloff went on to note that Cole has been in custody since 12/4 on a criminal complaint.
"His initial appearance was 12/5. The mag judge set a detention hearing for 12/15, but didn’t mention a preliminary hearing. Seems like everyone assumed the govt would indict Cole by 12/15—but it didn’t," he wrote. "Instead, on 12/10 the parties agreed to put off the indictment deadline and the detention hearing until 12/30. On 12/24 & 12/27 the defense says it asked the govt if the detention hearing would double as a prelim hearing if there’d still been no indictment."
But, according to the expert, "On 12/28 Govt told Cole’s attys that the 12/30 hearing was *not* a preliminary hearing but that no federal grand juries were sitting from 12/16 to 1/5. Cole’s attys said they hadn’t waived the indictment/prelim hearing deadline beyond 12/30."
The analyst further added, "Apparently realizing the problem, on 12/29 the govt got an indictment—but, controversially, from a DC superior court grand jury rather than a federal one."
That is the same route the DOJ took in another case involving Kevontae Stewart, Parloff explained. But he also said there is one key difference in this case.
"Though the stay left Stewart’s case in limbo, Stewart was out on bail, so his disputed indictment wasn’t keeping him detained. In Cole’s case, it *is.* Mag Judge Sharbaugh ordered parties to brief the situation by 12/31," he then added, noting that Cole has already filed his brief. "No govt brief appears on the public PACER docket, but it may have been filed under seal. Mag Judge Sharbaugh promised to rule promptly, as he must, given Cole’s continued detention."