The larger impact of the Supreme Court's decision to strike down the obstruction count used in the Jan. 6 attacks will face new scrutiny on Wednesday, when the court tests whether the resentencing of rioters should result in shorter sentences in such cases.
Since the Supreme Court's June ruling, numerous rioters have asked the judge to postpone or reconsider sentences already handed down, and prosecutors said in court filings that a “case-by-case” analysis of the disruption cases is underway to determine how to proceed and whether stronger sentences are appropriate.
Now, lawyers are preparing to test the case in 2022 against former Virginia State Trooper Thomas Robertson, who was convicted by a jury of six charges, including obstruction of justice, and sentenced to more than seven years in prison.
Prosecutors said Robertson entered the Capitol with the first wave of rioters and used his “specialized training” in law enforcement to impede officers trying to push back the mob, striking at least two officers with a large wooden stick.
Rioter's 87-month sentence was initially set aside but was ordered rescheduled in May after a federal appeals court ruling affected sentencing guidelines, but the appeals court also said Rioter's lower court judge could also consider the obstruction conviction, which was then on hold by the Supreme Court, when imposing a new sentence.
In Robertson's resentencing, a federal judge will decide how much, and whether, the Supreme Court ruling should reduce the rioter's sentence.
The prosecutor said the ruling Don't moveBut Robertson's lawyers Much lower termThis suggests that the rioters have been “model prisoners” for the past three years, as well as a dramatic change in sentencing guidelines.
After the attack on the Capitol, more than 350 rioters were charged with obstruction of justice. Section 1512(c)(2) of the act makes it a crime to “wrongfully” obstruct, impede, or interfere with an official congressional inquiry or investigation.
The Justice Department initially used the technique to prosecute rioters who disrupted Congress' certification of the results of the 2020 presidential election, but one of the rioters, Joseph Fisher, challenged the technique, arguing that prosecutors had illegally altered charges that had previously criminalized document shredding to cover the actions of those who stormed the Capitol that day.
The Supreme Court, voting 6-3 with Fisher, wrote that it was “bizarre” to conclude that Congress had “concealed” a sweeping provision that went far beyond the destruction of evidence that originally prompted the legislation, and not for ideological reasons.
“The better conclusion is that subsection (c)(2) was designed by Congress to capture other forms of evidence other than those Congress specified in subsection (c)(1) and other means of impairing its integrity or availability,” Chief Justice John Roberts wrote in the majority opinion.
Justice Ketanji Brown Jackson, aligning with the Supreme Court's conservative majority, argued that there was still a way forward in the January 6 case. In laying out a road map for prosecutors, she suggested that certain records, including the electoral votes themselves, were inherently relevant to Congress' certification of the electoral votes.
“As alleged herein, Fisher's conduct likely amounted to impair (or attempted to impair) the availability or integrity of materials used in the January 6th proceedings 'in a manner other than as provided in (c)(1)',” Jackson wrote. “If so, prosecution of Fisher under § 1512(c)(2) can and should proceed.”
In its recent sentencing of Michael Sparks, the first rioter to breach the Capitol on January 6, the Justice Department tried its own route in the case, which has already been heard.
At last week's sentencing hearing, prosecutors argued that Sparks' obstruction of justice conviction should still be weighed in determining his sentence, despite the charges being dismissed following the Supreme Court ruling.
Their argument was two-fold, focusing in particular on evidence that Sparks destroyed: After receiving an arrest warrant from the FBI, the rioter permanently shut down his Facebook account and erased text messages between himself and other rioters.
“This was a targeted effort,” Assistant U.S. Attorney Emily Allen told the judge last week.
Sparks' lawyers countered that deleting her Facebook account doesn't constitute sabotage because apps like Snapchat and Signal automatically delete content as part of their services.
But U.S. District Judge Timothy Kelly sided with the prosecution, finding that the context of Sparks' actions was key — that he deleted the data after he learned he was wanted by authorities. The judge considered the crime and sentenced Sparks to more than four years in prison, a significant departure from federal guidelines.
In handing down his sentence, Judge Kelly also noted that a jury had found Sparks guilty of obstructing Congress' certification of the 2020 election, a charge that was later tossed out.
“I accept that you had that intention,” the judge said.
in Friday's filing in Robertson's caseAssistant U.S. Attorney Elizabeth Aloi noted that Sparks was the first defendant to be convicted of obstruction of justice and that the government did not move forward with sentencing on that charge. She relayed Kelly's tough sentence to Robertson's judge and suggested a similar roadmap for Robertson's own resentencing.
“The applicable guideline calculation did not take into account Mr. Sparks' clear intent to disrupt the functioning of government,” Aloi wrote.
