Williams/CQ-Roll
Call,
Inc
via
Getty
Images)
On
December
4,
2025,
the
Justice
Department
announced
that
it
had
finally
arrested
the
one
January
6
criminal
they
care
about:
Brian
Cole,
Jr.,
the
alleged
DNC
pipe
bomber.
On
the
dais
for
the
half-hour
victory
rally
were
FBI
Director
Kash
Patel
and
his
then-deputy
Dan
Bongino,
two
former
podcasters
who
previously
claimed
that
the
bombs
were
planted
by
Biden
allies
to
distract
from
a
“stolen”
election.
Asked
about
this
discrepancy
by
Fox
News’s
Sean
Hannity,
Bongino
sulked
that
“I
was
paid
in
the
past
for
my
opinions.
One
day
I
will
be
back
in
that
space
but
that’s
not
what
I’m
paid
for
now.”
As
of
this
week,
he’s
back
in
his
safe
space.
Bingo,
bango,
Bye-o!
At
the
press
conference,
Bongino
blustered
that
“this
is
what
it’s
like
when
you
work
for
a
president
who
tells
you
to
go
get
the
bad
guys
and
stop
focusing
on
other,
extraneous
things,
not
related
to
law
enforcement.”
According
to
the
Wall
Street
Journal,
the
break
in
the
case
came
when
someone
at
the
FBI
wrote
a
code
to
unscramble
a
cache
of
damaged
cell
tower
data.
There’s
zero
indication
that
this
code
went
unwritten
for
five
years
because
the
FBI
was
in
mandatory
DEI
training,
and
the
Journal
reports
that
agents
expressed
“resentment
over
FBI
Director
Kash
Patel,
who
has
suggested
that
they
didn’t
work
doggedly
on
the
probe
until
Trump
administration
leadership
arrived.”
But
that
may
wind
up
being
the
high
water
mark
for
this
case,
which
has
been
prosecuted
in
truly
shambolic
fashion
since
being
handed
off
to
Jeanine
Pirro,
the
US
Attorney
for
DC.
Calendars
are
hard
On
December
3,
the
DOJ
filed
a
criminal
complaint
alleging
that
Cole,
a
30-year-old
man
living
with
his
mother
in
Virginia,
traveled
to
DC
on
the
eve
of
the
Capitol
Riot
and
planted
crudely
constructed
pipe
bombs
outside
the
RNC
and
DNC.
But
a
criminal
complaint
is
not
an
indictment;
it
merely
allows
the
government
to
seek
detention
of
a
suspect
and
starts
a
30-day
clock
to
charge
him.
Under
Federal
Rule
of
Criminal
Procedure
5.1,
a
magistrate
judge
must
also
hold
a
preliminary
hearing
within
21
days
to
establish
probable
cause
that
the
defendant
committed
the
crime.
But
that
almost
never
happens
because
a
competent
prosecutor
will
go
to
a
grand
jury
and
secure
an
ex
parte
indictment
rather
than
participating
in
an
adversarial
hearing
where
the
defendant
gets
to
present
evidence
and
interrogate
the
government’s
witnesses.
No
preliminary
hearing
was
calendared
here
because
all
parties,
including
Magistrate
Judge
Matthew
Sharbaugh,
assumed
that
the
DOJ
would
proceed
expeditiously
to
a
federal
grand
jury
and
seek
an
indictment.
But
for
whatever
reason,
they
didn’t.
On
Christmas
Eve,
with
no
indictment
on
the
horizon,
Cole’s
lawyers
started
tapping
their
watches
and
asking
the
DOJ
what
it
planned
to
do
about
its
obligations
under
Rule
5.1.
On
December
29,
Assistant
US
Attorney
Charles
Jones
admitted
that
there
were
no
grand
juries
sitting
in
the
US
District
Court
for
DC
between
December
19,
2025
and
January
5,
2026,
and
thus
there
would
be
no
federal
indictment.
Jones
proposed
scheduling
the
probable
cause
hearing
for
January
6
or
7,
i.e.,
never,
since
by
then,
he’d
have
presumably
managed
to
get
an
indictment.
Cole’s
lawyers
responded
that
the
government
had
to
hold
the
probable
cause
hearing
on
December
30,
or
let
him
go
home.
Before
Judge
Sharbaugh
could
rule,
the
DOJ
showed
up
on
December
29
with
an
indictment
returned
by
a
grand
jury
sitting
in
DC
Superior
Court.
Po-tay-to,
po-tah-to?
In
the
infinite
wisdom(?)
of
our
nation’s
founders,
our
seat
of
government
is
located
in
no
state.
And
because
DC
is
a
non-state
municipality,
the
US
Attorney
prosecutes
crimes
in
DC
Superior
Court
(the
analog
to
state
courts)
as
well
as
in
the
US
District
Court
for
DC.
In
the
past,
indictments
returned
by
DC
Superior
Court
grand
juries
have
occasionally
been
accepted
by
federal
judges.
But
Pirro’s
office
ran
into
trouble
recently
when
it
used
the
local
grand
jury
as
an
end-run
around
the
federal
grand
jury.
On
September
26,
after
a
federal
grand
jury
no-billed
an
indictment
of
DC
resident
Kevontae
Stewart
for
gun
possession,
Pirro’s
office
successfully
shopped
the
case
to
a
Superior
Court
grand
jury
instead.
Magistrate
Judge
Zia
Faruqui,
who
had
expressed
outrage
at
the
DOJ
for
charging
and
then
dropping
so
many
garbage
cases,
refused
to
accept
the
indictment.
After
extensive
briefing,
he
ruled
that
indictments
from
DC
Superior
Court
are
not
valid
in
federal
court.
The
DOJ
appealed,
and
Chief
Judge
James
Boasberg
ordered
Judge
Faruqui
to
accept
the
Stewart
indictment.
But,
noting
that
“the
public
interest
lies
in
letting
the
Court
of
Appeals
decide
this
issue
before
the
Government
moves
forward
both
on
this
case
and
in
similar
fashion
on
other
cases,”
he
stayed
the
case
pending
Stewart’s
appeal
to
the
DC
Circuit.
On
December
30,
Magistrate
Judge
Sharbaugh
asked
for
briefing
on
whether
he
should
accept
the
DC
Superior
Court
indictment
of
Brian
Cole
in
light
of
Judge
Boasberg’s
ruling
in
the
Stewart
case.
Sensing
that
the
best
defense
was
a
good
offense,
Jones
indignantly
protested
that
the
cock-up
was
all
the
defendant’s
fault.
“In
good-faith
reliance
on
the
representations
of
defense
counsel
of
record,
the
government
chose
not
to
secure
an
early
indictment
in
this
case
on
or
before
December
19,
2025,
the
last
date
on
which
grand
jury
panels
would
be
sitting
in
the
District
Court
for
the
District
of
Columbia
until
January
6,
2026,”
he
whined.
“The
government
would
have
sought
such
an
early
indictment
from
a
federal
grand
jury
panel
had
there
been
any
indication
that
the
defense,
contrary
to
all
indications,
intended
to
pursue
a
preliminary
hearing
on
December
30,
2025.”
To
be
clear:
This
indictment
is
not
“early.”
The
defendant
agreed
to
postpone
the
detention
hearing
and
allow
the
government
a
few
more
days
to
get
in
front
of
a
grand
jury.
That’s
not
an
agreement
to
forego
a
preliminary
probable
cause
hearing.
But
the
government
pinky-promised
that
it
would
get
a
federal
grand
jury
to
bless
this
thing
on
January
6,
and
that
was
good
enough
for
Judge
Sharbaugh.
Based
on
“the
government’s
confirmation
that
it
does
not
intend
to
use
the
Superior
Court
grand
jury
as
an
ultimate
end-run
around
a
federal
grand
jury
empaneled
by
this
Court,”
he
accepted
the
indictment
in
a
one-paragraph
minute
order,
obviating
the
need
for
a
probable
cause
hearing.
Out
of
the
frying
pan
…
After
the
indictment
—
or
“indictment,”
depending
on
your
perspective
—
the
case
was
assigned
to
Judge
Amir
Ali,
ending
Sharbaugh’s
involvement.
Landing
on
the
docket
of
a
former
civil
rights
litigator
who
argued
multiple
Supreme
Court
cases
on
behalf
of
criminal
defendants
was
either
a
lucky
break
or
a
potential
disaster
—
again,
depending
on
your
perspective.
Cole’s
lawyers
promptly
filed
an
emergency
motion
to
un-accept
the
indictment
and
release
their
client
because
he
never
got
his
preliminary
hearing.
They
characterized
Judge
Sharbaugh’s
ruling
as
“conditional”
and
argued
that
his
brief
minute
order
“avoid[s]
any
legal
analysis
of
the
dispositive
issue,
which
is
whether
a
valid
indictment
has
been
returned
in
this
case.”
Judge
Ali
ordered
the
government
to
respond
by
5
p.m.
on
Monday,
January
5.
Presumably
prosecutors
will
race
into
the
grand
jury
room
on
Tuesday
morning
and
try
to
get
a
federal
indictment
before
Judge
Ali
rules
on
Cole’s
motion.
Maybe
that
will
moot
the
issue,
and
this
prosecution
can
proceed
normally.
But
it
won’t
change
the
fact
that
the
DOJ
spent
three
weeks
flailing
around
because
Pirro’s
office
couldn’t
be
bothered
to
present
this
high-profile
case
to
a
federal
grand
jury
before
wandering
off
for
vacation.
And
right
on
time,
the
US
Attorney
is
stumbling
in
to
make
it
worse.
In
posts
on
Facebook
and
X,
she
wrote
that
Cole
“gave
a
detailed
confession
to
the
charged
offenses,
telling
law
enforcement
he
was
frustrated
with
both
political
parties.”
This
is
a
ham-fisted
effort
to
obscure
the
fact
that
Cole,
who
is
on
the
autism
spectrum,
did
what
he
did
because
he
believed
Trump’s
lies
about
a
stolen
election
—
lies
that
Pirro
herself
was
pulled
off
the
air
for
fomenting.
It
will
also
feature
prominently
in
an
upcoming
motion
for
a
gag
order
to
stop
DOJ
from
poisoning
the
jury
pool.
If
we
didn’t
know
better,
we’d
think
the
DOJ
was
deliberately
trying
to
tank
this
prosecution.
Guess
we’ll
have
to
wait
for
Dan
Bongino
to
get
back
to
podcasting
and
connect
the
dots
for
us.
Subscribe
to
read
more
at
Law
and
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