Kevin McCarthy Just Gave Fox News a Huge Gift

Democrats and other media companies need to hit back fast.

Images courtesy of CNN

Another news story broke yesterday on Axios that shocked many in Congress, the media and in legal circles. Speaker Kevin McCarthy, who has long argued that “the public” ought to be allowed to see more security camera footage from the January 6 attack on the Capitol, released some 41,000 hours of it… but did so exclusively to Tucker Carlson at Fox News. 

According to reporting, Carlson’s producers are already digging through the tapes and will begin airing selected excerpts in coming weeks. Said Carlson, “[T]here was never any legitimate reason for this footage to remain secret.” And last month, Speaker McCarthy signaled that he was in favor of the tapes’ release, stating to reporters in Statuary Hall that he thinks “the American public should actually see all [that] happened instead of a report that’s written [on] a political basis.”

Now that the initial WTF moment has passed, there are some critical questions we should all be asking, as well as legal actions that Democrats, the media, and civil rights groups should soon take. Let’s review the history and context behind the far right’s push for more January 6 footage and then walk through why it is such an unprecedented and egregious move by McCarthy to hand the tapes over to Carlson and Carlson alone.

The footage of the attack

Congress and specifically the January 6 Committee have had access to tens of thousands of hours of footage from the attack upon the Capitol. They combed through it in preparing their final report and made parts of that footage available during the January 6 hearings, where they aired clips. Prosecutors from the Justice Department have also had access to the security footage, while defense counsel for the insurrectionists charged have been granted access on a limited basis, especially to footage that prosecutors intended to present in open court.

The January 6 Committee was bipartisan but had no members of the far right on it. This made it the target of extremists and led to unfounded charges of a broad conspiracy to hide “the truth” from the public. Tucker Carlson, for example, has argued on his show as recently as January 2023 that this is all part of a “regime of secrecy and deceit.” He has tried to push a counter narrative that the violence at the Capitol was just “a forgettable minor outbreak by recent standards.” This echoes statements by radicals in Congress like Rep. Andrew Clyde (R-GA)  who famously compared the riot to a “normal tourist visit” of the building, even though he allegedly screamed in terror and barricaded a door when his own life was threatened by attackers breaking into the House chamber.

With possible indictments of key Republican figures in the coming weeks and months relating to January 6, not the least of whom is the former president himself, the far-right is eager to get out ahead with its own counterfactual narrative that the insurrection was peaceful, patriotic, infiltrated by deep state operatives, actually carried out by antifa, and no big deal. None of this is supported by the footage as a whole, nor are these ideas even internally consistent. But facts and logic don’t matter so long as Fox News can plant irrational doubts and continue to “just ask questions” so that its viewers won’t grasp the truth.

As Aidan McLoughlin of Mediaite noted, on January 6th Carlson had initially expressed alarm about the attack, as the texts to his producer that day demonstrated. Those were only made public recently in Dominion Voting Systems’ defamation case against Fox News. Carlson wrote that Trump is “a demonic force, a destroyer. But he’s not going to destroy us.” Then, on air, he described the attack as a “storming” of the Capitol building. 

But in the weeks and months that followed, Tuckson began a nonsensical portrayal of the attack. It was part of a network-wide effort to win back viewers who had fled to more right-wing outlets. Carlson described the assault as a “nonviolent election justice protest” and suggested to viewers that the entire thing was a “false flag.” Now Carlson may seek to use his exclusive access of the footage to continue to feed these conspiracy theories, keep his viewers wanting even more “evidence” to support their false beliefs—just as he did with his bogus claims about a stolen election which he knew to be untrue.

The reason for heightened caution around release of the tapes

There are awfully good reasons that lawmakers and courts have been careful not to permit wholesale release of the security footage. The tapes would show, for example, the locations of all the security cameras on the premises as well as their capabilities including their specific abilities to tilt and rotate. The footage would also importantly show emergency escape routes used by Congressmembers during the attack. 

In the hands of nefarious actors, who credibly might attempt another similar attack in the future, such information would be extremely useful. Indeed, had it been in the hands of the Proud Boys and Oath Keepers who organized and led the assault on January 6, 2021, they may well have succeeded. Even more lives would have been lost, with our entire democracy threatened by hostage takers and executioners.

Former January 6 committee spokesman Tim Mulvaney blasted McCarthy’s action. “It’s hard to overstate the potential security risks if this material were used irresponsibly,” he said in a statement to CNN. “When the January 6th Select Committee obtained access to US Capitol Police video footage, it was treated with great sensitivity given concerns about the security of lawmakers, staff, and the Capitol complex,” Mulvaney noted. “Access was limited to members and a small handful of investigators and senior staff, and the public use of any footage was coordinated in advance with Capitol Police.”

In the January 6 defendant cases now being tried or pending, the CCTV footage has been tightly controlled by a protective order and defendants are expressly not permitted to publicly release portions of the footage. “Once the capabilities of a U.S. Capitol interior surveillance camera, including its position and whether it pans, tilts or zooms, is disclosed to the public via the release of a single video from that camera, the cat is out of the bag,” Justice Department prosecutors wrote in a July 2021 court filing. McCarthy’s move to hand Carlson and Fox News all of the CCTV footage greatly increases the likelihood that a public release of the video footage could occur.

Outside of the context of educating the public around the violent nature of the attack, as well as the need for fairness in permitting accused insurrectionists to mount informed defenses, there is no compelling need for the media to have full access to the tapes, especially when weighed against the known security risks. That a single media outlet—one which is known to play footsie with those same insurrectionists while openly promoting falsehoods about the election—should gain full and exclusive access to the tapes is beyond dangerous.

Democrats fire back

The former chair of the January 6 Committee, Rep. Bennie Thompson (D-MS) minced few words as he condemned the move. “If Speaker McCarthy has indeed granted Tucker Carlson—a Fox host who routinely spreads misinformation and Putin’s poisonous propaganda—and his producers access to this sensitive footage, he owes the American people an explanation of why he has done so and what steps he has taken to address the significant security concerns at stake.” 

Former chair of the House Intelligence Committee, Rep. Adam Schiff (D-CA), whom McCarthy had removed without cause from the Committee after assuming the speakership, echoed Thompson’s deep concerns:

Kevin McCarthy turned over Jan 6 videos to right-wing propagandist Tucker Carlson.

A man who spews Kremlin talking points. Suggests Jan 6 was a false flag. And spreads the Big Lie.

Make no mistake: This isn’t about transparency, it’s about fueling dangerous conspiracy theories.

But strong words alone of course aren’t going to stop Fox News.

The release of tapes just to Fox News is likely illegal

It doesn’t take much to understand right away that, in a free and liberal democracy, the leader of the Republican House majority in Congress ought not to be providing a treasure trove of highly sensitive security footage just to one network in the name of transparency. A fully transparent release would be made instead to any and all members of the press who have requested the tapes. McCarthy’s move sounds more like the environment that state-run media enjoys, and not a robust marketplace of competing media outlets.

Moreover, these tapes, which belong to the American people, have a great deal of value to broadcast networks that are able to selectively air them. Fox News and McCarthy both understand how they would help the network’s ratings and keep viewers glued to Carlson’s false conspiracies. 

When the government favors one press outlet over another, or gives something that belongs to the American people and is of great value to one network and not another, this implicates the First Amendment directly. And it’s not hard to see how this moves runs afoul of it. McCarthy is effectively suppressing speech by only allowing a favorable media outlet to have access to the raw footage. I expect other media companies to howl in protest and immediately move to have equal access to the footage. 

But that legal challenge might take time, which is why Fox News likely is furiously trying to stitch together what it can before its exclusive access is halted by the courts. A temporary restraining order would be the best move, filed right now, to stop Fox News and McCarthy in their tracks. I honestly hope one is soon forthcoming.