Many of the Jan. 6 rioters could face resentencing or further lawsuits this summer after the U.S. Supreme Court ruled that the Justice Department exceeded its authority in broadly prosecuting the Capitol attack.
The ruling has left federal prosecutors scrambling to redefine the application of newly invalid obstruction charges and maintain their longstanding view that the riots were a threat to American democracy.
More than 350 rioters accused of disrupting Congress’ certification of the 2020 electoral vote have been charged with obstructing an official process, roughly a quarter of those charged for their roles in the attack.
Since the Supreme Court ruled narrowing the charges, bench-level judges have begun reopening some cases related to the 2021 Capitol attack, with the Justice Department urging them to slam on the brakes.
Arguments filed by federal prosecutors following the Supreme Court’s decision show the Justice Department is sticking to a concurring opinion by Judge Ketanji Brown Jackson, who said mobster Joseph Fisher and other defendants who challenged the obstruction charge could still be prosecuted on that charge.
Jackson, the Supreme Court’s newest liberal justice, signed the opinion of the conservative majority, dissenting from the other two liberals, who were joined in dissent by conservative Justice Amy Coney Barrett.
Federal prosecutors on Monday asked the court to postpone the sentencing of two rioters affiliated with the Oath Keepers, an extremist militia group led by Stewart Rose who was convicted of sedition conspiracy in connection with the Jan. 6 attacks, to assess the Supreme Court’s decision and any future steps.
“The United States seeks a continuance to assess the impact of the Fisher sentence,” Assistant U.S. Attorney Katherine Rakoczy wrote in a defense court filing. Thomas Caldwell and Donovan Crowl“A short postponement of 30 to 60 days will not prejudice defendants or the court. Rather, it will help ensure a uniform and consistent approach before each district and circuit judge.”
In multiple court filings, prosecutors have indicated that the decision does not preclude all prosecutions under the provision.
Federal prosecutors sent a letter Tuesday to the judge overseeing the case of Guy Reffitt, the first rioter convicted by a jury. A resentencing was “premature.” Hours after the Fisher v. U.S. Supreme Court ruling, the judge ordered the government and Reffitt’s lawyers to propose a schedule for “further proceedings” by July 5, suggesting that resentencing was imminent.
Assistant U.S. Attorney Lisa Berkouwer argued in the filing that the Supreme Court “did not dismiss the application of Section 1512(c)(2) to the January 6 prosecution.” Instead, she explained that the government must prove that a defendant “impaired or attempted to impair the availability or integrity of records, documents, objects, or other things used in the proceeding, such as witness testimony or intangible information, intended for use in the formal proceeding,” Berkouwer wrote.
John Lewis, a research fellow at George Washington University’s Program on Extremism, said the sentence could strengthen a view that has circulated since Jan. 6 that the rioters were wrongfully charged.
“Perhaps more importantly, I think this verdict provides a rhetorical victory for right-wing claims about deep state persecution and the political crimes committed on January 6th,” Lewis said. “This verdict will be twisted and weaponized as justification for all the conspiracies and grievances that have arisen from this situation in recent years and will be used to rally a new ‘Stop the Steal’ coalition ahead of the upcoming election.”
The Supreme Court’s decision could affect all of the defendants charged with obstruction (355 cases), including members of groups such as the Oath Keepers and the far-right Proud Boys, but the weakened charges will only effectively affect a handful of them.
Among them is Jacob Chansley, better known as the “QAnon Shaman” for the fur headdress and spear he wore during the storming of the Capitol. Chansley pleaded guilty to obstruction of justice and was sentenced to 41 months in prison without trial.
He has already served that sentence, but the Department of Justice Recent court documents suggest The Supreme Court’s decision “could create a situation where evidence must be preserved and defendants must be put on trial,” he said, without elaborating further on the issue.
Krete Derick Keller, a five-time Olympic medalist in swimming, who stormed the Capitol on January 6th, Pleaded guilty and one charge of obstruction of official business. No updates had been filed in Keller’s case as of Tuesday.
Trump himself faces two charges stemming from this provision in a federal election interference case, but it’s unclear whether the ruling will have a significant impact on the former president’s case. Special counsel Jack Smith has argued in court documents that Trump’s interference charges stem from different actions than those of the Capitol stormers: his attempt to send a slate of so-called “fake electors” to Congress.
In the Supreme Court’s decision on former President Trump’s challenge to presidential immunity, Chief Justice John Roberts wrote that, in light of the justices’ decision in Fisher, trial courts should decide whether former President Trump’s prosecution under 1512(c)(2) can proceed.
Still, President Trump and his allies were quick to seize upon the ruling, with the former president praising it as a “major victory.”
