DOJ seeks foothold after Supreme Court loss on Jan. 6 obstruction charge

Swaths of Jan. 6 rioters could face resentencing or additional proceedings this summer after the Supreme Court ruled that the Department of Justice (DOJ) overreached in its sweeping prosecution of the Capitol attack.

The decision has left federal prosecutors scrambling to redefine their use of the newly neutered obstruction charge and maintain their long-held narrative that the riot was a threat to American democracy.

More than 350 rioters accused of interrupting Congress’s certification of the 2020 electoral vote were charged with obstruction of an official proceeding, about a quarter of those charged for their roles in the attack.

Since the Supreme Court issued its decision narrowing that charge, trial-level judges have started to reopen some cases tied to the 2021 Capitol attack. The Justice Department has urged them to slam the brakes.

The arguments put forth by federal prosecutors in the aftermath of the high court’s decision show the Justice Department has latched onto Justice Ketanji Brown Jackson’s concurring opinion, in which she signaled her belief it is possible for Joseph Fischer — the rioter who challenged the obstruction charge — and other defendants to still be prosecuted under it.

Jackson, the high court’s newest liberal justice, signed onto the conservative-majority opinion and broke from the other two liberals, who were joined instead by conservative Justice Amy Coney Barrett in their dissent.

On Monday, federal prosecutors asked the court to push back sentencing for two rioters aligned with the Oath Keepers, the extremist militia group headed by Stewart Rhodes, who was convicted of seditious conspiracy in connection with Jan. 6, in order to assess the Supreme Court’s 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 defendants Thomas Caldwell and Donovan Crowl. “A brief continuance of 30-60 days would not prejudice the defendant or the Court; to the contrary, it would help to ensure a uniform and consistent approach before each judge of the District and Circuit.”

Across court filings in several cases, prosecutors have hinted that the decision should not hinder all prosecution under the provision.

Federal prosecutors on Tuesday wrote to the judge who oversaw Guy Reffitt’s case — the first rioter convicted by a jury — to suggest that a resentencing was “premature.” Hours after the high court’s decision in Fischer v. United States, the judge ordered the government and Reffitt’s attorneys to propose a schedule for “further proceedings” by July 5, signaling a resentencing was imminent.

Assistant U.S. Attorney Risa Berkower argued in the filings that the Supreme Court “did not reject the application of § 1512(c)(2) to January 6 prosecutions.” Instead, it explained that the government must prove 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 testimony or intangible information — or attempted to do so,” Berkower wrote.

Jon Lewis, a research fellow at the Program on Extremism at the George Washington University, said that the ruling could bolster a narrative pervasive since Jan. 6 that the rioters were unfairly prosecuted.

“I think what is perhaps more significant is the rhetorical win this provides to right-wing narratives around a deep state persecution and Jan. 6 political prisoners,” Lewis said. “This ruling will be twisted and weaponized as validation of every conspiracy and every grievance that has emerged out of this milieu in recent years, and will [be] used to rally another ‘stop the steal’ coalition in advance of the upcoming election.”

Though the Supreme Court’s decision could apply to all 355 defendants facing the obstruction charge — including members of groups like the Oath Keepers and far-right Proud Boys — the weakened charge only stands to materially affect a handful of defendants.

Among them is Jacob Chansley, known better as the “QAnon Shaman” for donning a horned fur headdress and spear during the Capitol riot. Chansley pleaded guilty to one charge, obstruction of an official proceeding, and was sentenced to 41 months in prison without a trial.

Though he’s already served that time, the Justice Department signaled in recent court filings that the Supreme Court’s decision “may create a situation where evidence must be preserved and Defendant tried,” not expanding further on the matter.

Klete Keller, the five-time Olympic medal winner for swimming who stormed the Capitol on Jan. 6, also pleaded guilty to one charge of obstructing an official proceeding. No updates have been filed in Keller’s case as of Tuesday.

Former President Trump himself faces two charges stemming from the provision in his federal election subversion case, though it’s 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 stemmed from different actions than those who attacked the Capitol — namely, his effort to send slates of so-called fake electors to Congress.

Chief Justice John Roberts wrote in the Supreme Court’s decision on Trump’s presidential immunity challenge that the trial-level court should determine whether Trump’s obstruction charges may proceed considering the justices’ decision in Fischer.

Still, Trump and his allies took little time to capitalize on the decision, with the former president hailing the ruling as a “BIG WIN!”

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