Above, Lt. Michael Byrd, the officer who shot Ashli Babbitt, told NBC News he gave fair warning, but under penalty of perjury he refused to say anything to investigators.
By Paul Sperry, RealClearInvestigations
January 11, 2022
When U.S. Capitol Police Lt. Michael Byrd went on “NBC Nightly News” to tell his side of shooting and killing unarmed Jan. 6 rioter Ashli Babbitt, he made a point to note he’d been investigated by several agencies and exonerated for his actions that day.
“There’s an investigative process [and] I was cleared by the DOJ [Department of Justice], and FBI and [the D.C.] Metropolitan Police,” he told NBC News anchor Lester Holt in August, adding that the Capitol Police also cleared him of wrongdoing and decided not to discipline or demote him for the shooting.
Byrd then answered a series of questions by Holt about the shooting, but what he told the friendly journalist, he likely never told investigators. That’s because he refused to answer their questions, according to several sources and documents reviewed by RealClearInvestigations.
In fact, investigators cleared Byrd of wrongdoing in the shooting without actually interviewing him about the shooting or threatening him with punishment if he did not cooperate with their criminal investigation.
“He didn’t provide any statement to [criminal] investigators and they didn’t push him to make a statement,” Babbitt family attorney Terry Roberts said in an RCI interview. “It’s astonishing how skimpy his investigative file is."
Roberts, who has spoken with the D.C. MPD detective assigned to the case, said the kid-glove treatment of Byrd raises suspicions the investigation was a “whitewash.”
The lawyer's account appears to be backed up by a January 2021 internal affairs report, which notes Byrd "declined to provide a statement,” D.C. MPD documents show.
Asked about it, a D.C. MPD spokeswoman confirmed that Byrd did not cooperate with internal affairs agents or FBI agents, who jointly investigated what was one of the most high-profile officer-involved shooting cases in U.S. history.
“MPD did not formally interview Lt. Byrd,” deputy D.C. MPD communications director Kristen Metzger said. And, “He didn’t give a statement while under the U.S. Attorney’s Office investigation.”
After Byrd declined to cooperate with D.C MPD Internal Affairs Division’s investigation, which was led by Det. John Hendrick, his case eventually was turned over to the USCP for a final administrative review of whether or not his actions conformed with department policies and training.
Still, USCP concluded in August that “the officer’s conduct was lawful and within department policy.” The agency launched its administrative investigation after the criminal investigation was closed.
In April, within four months of the shooting, Byrd was cleared of criminal wrongdoing by the Justice Department, which declined to impanel a grand jury to hear evidence in a departure from other lethal police-shooting cases involving unarmed citizens.
Justice ruled there “was not enough evidence” to conclude Byrd violated Babbitt’s civil rights or willfully acted recklessly in shooting her.
Byrd remains the commander in charge of security for the House of Representatives.
Neither the FBI nor the Justice Department would comment on whether they pressed Byrd after he insisted on remaining silent. The D.C. police force, which shares some jurisdiction with the Capitol Police, takes the lead in internal affairs probes like this one.
Roberts questioned how investigators could find that Byrd acted in self-defense and properly followed his training procedures, including issuing warnings before shooting Babbitt, since he refused to talk about it while the investigation was open -- and his statements, unlike those made to NBC, would have been taken under penalty of perjury. “How would they know if they never interviewed him?” he said, adding that it’s not enough to say an officer did nothing wrong without showing how it reached such a finding.
By avoiding an interrogation, he said Byrd avoided saying anything that could have been used to incriminate him, including making false statements to federal agents, which would be a felony. Remarkably, he did not formally invoke his Fifth Amendment right to remain silent, according to people familiar with his case, which makes the reluctance of authorities to lean on him or sanction him for not cooperating all the more puzzling. By law, federal agencies can use leverage short of termination, such as an unwelcome duty reassignment, to persuade employees to cooperate with investigators. Byrd was put on paid administrative leave during the investigative process.
Byrd waited to speak publicly until after his statements could no longer be used against him in a criminal probe. The heavily promoted NBC “exclusive” told only his account of what happened with no opposing viewpoints. “I believe I showed the utmost courage on Jan. 6,” Byrd said.
In defending his actions, Byrd told Holt things he evidently wouldn’t tell investigators, including his claim that he shot as “a last resort” and only after warning Babbitt to stop.
However, documents uncovered by Judicial Watch reveal that eyewitnesses — including three police officers at the scene — told investigators they did not hear Byrd give Babbitt any verbal warnings prior to firing, contradicting what Byrd told NBC.
The Babbitt family has maintained that the rushed investigation amounted to a "coverup" of misconduct by the officer. It says the federal probe was conducted under political pressure, arguing that Byrd was not put through the normal rigors of a police shooting investigation to avoid making a martyr of Babbitt, an avid Donald Trump supporter. An Air Force veteran from California, Babbitt died while wearing a Trump flag as a cape. The former president has demanded the Justice Department reinvestigate her death.
Rep. Troy Nehls of Texas, a former sheriff, argued Babbitt’s shooting should have been presented to a federal grand jury. “This case was mishandled from the very beginning,” the Republican lawmaker told the U.S. attorney who led the probe for the Justice Department in a recent letter. In a separate letter to the Capitol Police chief, Nehls wrote: “Many officers in the USCP I have spoken to believe the investigations of Lt. Boyd were dropped because of his position and other political considerations."
Use-of-Force Experts Skeptical
Some use-of-force experts are skeptical Byrd did the right thing, even after watching his largely sympathetic NBC interview.
“The limited public information that exists raises serious questions about the propriety of Byrd’s decision to shoot, especially with regard to the assessment that Babbitt was an imminent threat,” said police consultants and criminologists Geoffrey Alpert, Jeff Noble and Seth Stoughton in a recent Lawfare article.
“We have serious reservations about the propriety of the shooting,” they wrote.
They said they doubted Byrd’s claims that he reasonably believed Babbitt “was posing a threat” and had the ability and intention to kill or seriously injure Byrd or other officers or lawmakers and therefore had to be stopped with lethal force. They noted that he admitted to Holt that he never actually saw Babbitt, who stood 5-foot-2 and weighed 110 pounds, brandish a weapon.
Babbitt was shot by Byrd a year ago when she and other pro-Trump rioters breached the Capitol amid efforts to stop Congress from certifying the state results of the 2020 election of Joe Biden. They sought to pressure then-Vice President Mike Pence to reject electors from Arizona and other states, where narrow results were challenged by Trump and his lawyers over allegations of voter fraud and other election irregularities.
Roberts and the Babbitt family are preparing to sue Byrd and the Capitol Police in a wrongful-death claim seeking at least $10 million in damages. Asked why his client chose not to go on the record and cooperate with investigators, Byrd’s attorney, Mark Schamel, declined comment. In an earlier interview, Schamel maintained the shooting was justified and that there is no basis for a civil case against his client.
The federal investigation of the lethal shooting was marked by secrecy and other irregularities. Unlike other officers involved in fatal shootings of unarmed civilians, Byrd was long shielded from public scrutiny after shooting Babbitt as she tried to climb through a broken window of a barricaded door at the Capitol. For eight months D.C. police officials withheld Byrd’s identity, first revealed by RealClearInvestigations, and they have not released a formal review of the shooting, or the 28-year veteran's disciplinary records. Nor did the Capitol Police hold a briefing on Babbitt's death. Records uncovered by Judicial Watch reveal authorities ordered her body cremated two days after the shooting, without her husband's permission.
Meanwhile, the feds have thrown the book at suspected Jan. 6 rioters — publicly identifying them on a Justice Department website — and are still engaged in a national manhunt for suspects. More than 725 defendants have been charged mostly for relatively minor offenses ranging from trespassing to disorderly conduct.
So far, the select House committee set up to investigate the Jan. 6 siege at the Capitol has not explored the most lethal violence that occurred that day. Byrd was responsible for the only shot fired during the riot – all other armed officers showed restraint, including 140 who were injured confronting rioters -- and Babbitt was the only person directly killed on that day. Like the other rioters, she carried no firearm — no guns were recovered from the Capitol.
Committee Chairman Bennie Thompson, D-Miss., has pledged to “investigate fully the facts and circumstances of these events.” Asked if the police shooting is on the agenda for public hearings planned for this winter, or whether it will be addressed in a final report scheduled for release before November’s congressional elections, a committee spokesman declined comment. Trump and GOP leaders have accused the panel, which is composed of seven Democrats and two Republicans, of trying to damage pro-Trump Republicans ahead of the midterms by claiming they helped orchestrate an “insurrection” and continue to pose "a threat to democracy."
Unlike in a criminal investigation, there is no right to remain silent in a civil case. Wrongful-death litigation claiming negligence may hinge on whether Byrd warned Babbitt before opening fire on her.
Roberts said Babbitt, a former military police officer who served tours in both Iraq and Afghanistan, would have complied with commands to stop and peacefully surrendered had Byrd or other Capitol officers attempted to arrest her. But he said additional eyewitnesses he’s interviewed say Byrd never gave her such verbal commands. He said Babbitt wasn’t even aware that the officer was nearby because he was positioned in a doorway of a room off to the side of the Speaker’s Lobby doors. Byrd, whose mouth was covered with a surgical mask, took aim outside her field of vision and fired as her head emerged through the window. Roberts compared her shooting to an “execution.”
“Killing her by shooting her at point-blank range was completely unnecessary,” he said. “This alone renders the shooting legally unjustified.”
Roberts pointed out that Byrd had mishandled his firearm in the past. He was the subject of a previous internal investigation for leaving his loaded service pistol in a Capitol restroom. It’s not clear if he was disciplined. At the time, the lieutenant reportedly told officers he would not be punished due to his high rank, which he kept despite the incident. But in the NBC interview, he said he was “penalized” for the 2019 misstep, without elaborating. A USCP spokeswoman declined to respond to repeated requests for information about any discipline administered for his misconduct.
Byrd could not be reached for comment, but in the NBC interview he denied receiving special treatment. “Of course not,” he said. “No way."
Before filing a lawsuit naming a federal agency, Roberts has to send a formal complaint for a claim for “damage, injury or death” — known as a federal form SF-95 — to USCP and wait for a response. He sent the notice in May and is still waiting for the Capitol Police to reply.
“We have received the SF-95 from Ms. Babbitt’s family attorney,” USCP General Counsel Tad DiBiase confirmed to RCI in an email. He declined to say how the department plans to respond: “I cannot comment on that."
In the meantime, Roberts said he is interviewing witnesses and also building a case from documents acquired through the Freedom of Information Act.
“I am still reviewing records obtained in FOIA action and there are more coming,” he said. “I am in no rush."