Many of the Jan. 6 rioters could face resentencing or new prosecutions this summer after the Supreme Court ruled that the Justice Department overreached in its sweeping prosecution of the Capitol attack.
The decision left federal prosecutors struggling to redefine the use of the recently neutralized obstruction charge and maintain the long-standing narrative that the riot was a threat to American democracy.
More than 350 protesters accused of disrupting Congress’ certification of the 2020 electoral vote have been charged with obstructing an official process, about a quarter of those charged for their roles in the attack.
Since the Supreme Court issued its ruling restricting that prosecution, lower court judges have begun reopening some cases linked to the 2021 Capitol attack. The Justice Department has urged them to pump the brakes.
Arguments presented by federal prosecutors following the high court ruling show that the Justice Department clung to Judge Ketanji Brown Jackson’s concurring opinion, in which she signaled her belief that it is possible that Joseph Fischer — the rioter who challenged the obstruction – and other defendants will still be prosecuted under it.
Jackson, the high court’s newest liberal justice, agreed with the conservative majority opinion and broke with the other two liberals, who were joined by conservative Justice Amy Coney Barrett in her dissent.
On Monday, federal prosecutors asked the court to delay the sentences of two protesters aligned with the Oath Keepers, the extremist militia group led by Stewart Rhodes who was convicted of seditious conspiracy in connection with January 6, in order to assess the Supreme Court decision and how to proceed.
“Here, the United States seeks a continuance to assess the impact of the Fischer decision,” Assistant U.S. Attorney Kathryn Rakoczy wrote in court filings for the defendants. Thomas Caldwell It is Donovan Crowl. “A brief extension of 30-60 days would not prejudice the defendant or the Court; rather, it would help ensure a uniform and consistent approach before each District and Circuit judge.”
In several court filings, prosecutors have suggested that the ruling should not preclude all prosecutions under the provision.
Federal prosecutors wrote Tuesday to the judge who oversaw the case of Guy Reffitt — the first rioter convicted by a jury — to suggest that a the new sentence was “premature”. Hours after the high court ruling in Fischer v. United States, the judge ordered the government and Reffitt’s lawyers to propose a timetable for “additional proceedings” by July 5, signaling that a new sentence was imminent.
Assistant U.S. Attorney Risa Berkower argued in court filings that the Supreme Court “did not reject the application of § 1512(c)(2) to the January 6 proceedings.” Instead, it explained that the government must prove that a defendant “impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in the proceeding – such as witness statements or intangible information – or attempted to do so ,” Berkower wrote.
Jon Lewis, a researcher at George Washington University’s Program on Extremism, said the decision could reinforce a widespread narrative since Jan. 6 that protesters were unfairly prosecuted.
“I think what is perhaps most significant is the rhetorical victory this provides for right-wing narratives around deep state persecution and the political prisoners of January 6th,” Lewis said. “This decision will be distorted and weaponized as validation of all the conspiracies and all the grievances that have emerged in this milieu over the last few years, and will (be) used to bring together another ‘stop the steal’ coalition before the next election.”
While the Supreme Court’s ruling could affect all 355 cases in which defendants faced the obstruction charge — including members of groups like the Oath Keepers and the far-right Proud Boys — the weakened charge will only materially affect a handful of defendants.
Among them is Jacob Chansley, better known as the “QAnon Shaman” for wearing a fur headdress with horns and a spear during the Capitol riot. Chansley pleaded guilty to one charge, obstructing an official proceeding, and was sentenced to 41 months in prison without trial.
Although he has already served that period, the Justice Department flagged in recent court cases that the Supreme Court’s decision “may create a situation in which evidence must be preserved and the Defendant tried”, not expanding the matter further.
Klete Derik Keller, five-time Olympic medal winner in swimming, who stormed the Capitol on January 6, also pleaded guilty to one count of obstructing an official proceeding. No update had been filed on Keller’s case as of Tuesday.
Trump himself faces two charges stemming from the disposition of his federal election subversion case, although it is unclear whether the ruling will have any notable impact on the former president’s case. Special Counsel Jack Smith has argued in court filings that Trump’s obstruction charge resulted from different actions than those of those who attacked the Capitol — notably, his effort to send lists of so-called “fake voters” to Congress.
Chief Justice John Roberts wrote in the Supreme Court’s ruling on former President Trump’s presidential immunity challenge that the trial court should determine whether Trump’s 1512(c)(2) charges can proceed by considering the justices’ decision in Fischer.
Still, it took Trump and his allies little time to capitalize on the decision, with the former president hailing the decision as a “GREAT VICTORY!”
This story originally appeared on thehill.com read the full story
