Jan. 6 defendants plot new strategy to delay cases

by Zach Schonfeld and Ella Lee - 01/06/24 12:00 PM ET

At least two dozen Jan. 6 defendants are seeking to delay their cases until the Supreme Court decides whether an obstruction charge used to prosecute scores of rioters was legitimately applied by the Justice Department, court filings show.

Some defendants are seeking pauses in their upcoming trials or sentencing hearings. Others already sentenced are hoping to be released from prison or punt their upcoming surrenders.

If successful, the requests could cause months-long delays and pose new challenges for prosecutors as the third anniversary of the Capitol attack passes.

The developments follow the Supreme Court’s announcement it will hear Fischer v. United States, a Jan. 6 defendant’s challenge to the obstruction statute that has allowed prosecutors to paint rioters’ actions as part of a bigger plot to stop the certification of the 2020 presidential election results.

The high court’s eventual ruling threatens to derail the cases of hundreds of Jan. 6 defendants charged under the statute – including former President Trump.

Former President Donald Trump speaks at a Run GenZ campaign event in Des Moines, Iowa, Saturday, Jan. 6, 2024. (AP Photo/Andrew Harnik)

But regardless of the outcome, prosecutors in the meantime now must confront the possibility that some defendants’ cases will be paused until the summer, as the Supreme Court’s decision is unlikely to land until May or June.

“The Supreme Court could say 1512(c) is unconstitutional,” said Gene Rossi, a former federal prosecutor who later served as a defense attorney for an Oath Keeper charged over Jan. 6. “You don’t want to have a trial – waste resources, witnesses, court time, jury’s time – and then later have the government lose and the court says, ‘You shouldn’t have tried that 1512. It’s a misapplication of the law.’

“Every judge, in my opinion, should pause and wait for the Supreme Court,” he added.

The Justice Department has insisted the prosecutions should still move ahead, noting how many of the defendants are charged with other crimes and asserting a strong public interest in the timely adjudication of the cases.

“The mere fact that the Supreme Court agreed to hear Fischer does not indicate that those opinions were wrongly decided,” prosecutors wrote in one case.

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At issue before the justices is how prosecutors have charged scores of rioters with obstruction of an official proceeding.

Enacted in the wake of the Enron scandal to curb corporate wrongdoing, the statute criminalizes “corruptly” obstructing, impeding or interfering with an official government proceeding. It carries a maximum penalty of 20 years in prison.

Former police officer Joseph Fischer is challenging his conviction by arguing the law’s history suggests a narrower scope, one that would require actual document destruction.

The charge has allowed federal prosecutors to include additional damning evidence in Jan. 6 cases, like videos from the Capitol hallways and information about Congress’ certification of the 2020 election, by asserting that the rioters were obstructing the legislature’s proceeding that day, Rossi said.

“If you take out that 1512, it could arguably…dilute the power of (the government’s) case and the gravity of their case,” Rossi said. “So that’s why this appeal to the Supreme Court is so important.”

But the impact of the Supreme Court’s decision could extend far beyond Fischer’s case. The charge has been levied against more than 332 Jan. 6 defendants so far, according to a Justice Department tally.

More than two dozen of them have now asked for a pause, arguing a favorable Supreme Court ruling could remake the future of their cases.

While some judges rejected a few of the attempts, one federal judge who oversees Jan. 6 cases in D.C.’s federal courthouse agreed to issue pauses for two defendants.

Jacob Clark, who hit a police officer with a 2×4 wooden plank inside the Capitol and was sentenced to 33 months in prison, was set to surrender by Jan. 2.

U.S. District Judge Dabney Friedrich, a Trump appointee, put his surrender date on hold until after the Supreme Court’s decision, finding that a ruling favorable to Clark could lead to a new trial or an outright dismissal of some of his charges.

“In this case, the Court finds by clear and convincing evidence that the defendant is not likely to flee or pose a danger to the safety of any other person or the community if released,” Friedrich wrote in the brief ruling. “The defendant has not fled or endangered anyone during a lengthy period of pretrial release. Rather, for more than two years, he has complied with substantially all of his pretrial release conditions.”

The next day, Friedrich similarly paused the sentencing hearing scheduled for Jan. 8 for Ethan Seitz, an Ohio man who was convicted on two charges.

“Resolution of Fischer directly implicates the sole felony count for which Mr. Seitz will be sentenced,” Seitz’s federal defender argued in court papers. “Therefore, in the interests of judicial economy, Mr. Seitz moves the Court to stay sentencing until the Supreme Court has resolved the issues raised in Fischer.”

Thomas Caldwell, an affiliate of the right-wing militia Oath Keepers who was tried alongside the group’s leader, Stewart Rhodes, successfully delayed his long-awaited sentencing by referencing Fischer’s case.

Unlike Rhodes, Caldwell was acquitted of seditious conspiracy in connection with the Capitol riot but was convicted of the 1512 obstruction statute and another felony. His lawyer argued in court filings that the government’s 14-year prison sentence request is based “almost entirely” on his obstruction charge conviction.

Prosecutors countered that Caldwell’s co-defendants were already sentenced — many of whom were also convicted of the obstruction charge and whose sentences were “heavily influenced” by those convictions. Allowing him to delay his sentencing, while the others were sentenced in May and June last year, affords him an “unfair advantage” his co-defendants were not granted, they said.

Rhodes was sentenced in May to 18 years in prison, the second harshest punishment to come from the attack on the Capitol. The other three defendants tried alongside Caldwell and Rhodes in 2022 were sentenced between four and 12 years in prison.

U.S. District Judge Amit Mehta ultimately vacated Caldwell’s sentencing, which was scheduled for Dec. 20. Mehta did not rule on whether the sentencing would be stayed until after Fischer’s case is resolved.

Other judges have brushed aside defendants’ motions.

Sara Carpenter, a former New York Police Department officer who shook a tambourine throughout the Capitol, made a last-minute effort to pause her sentencing hearing, which was scheduled for six days after the Supreme Court took up the case.

Chief District Judge James Boasberg, an Obama appointee, ruled that Carpenter’s sentence would not be “heavily dependent” on the obstruction charge and allowed her sentencing to move ahead as planned. Boasberg went on to sentence Carpenter to 22 months in prison.

Other defendants’ motions are still pending. The list includes Kevin Seefried, who is serving a three-year prison sentence after entering the Capitol on Jan. 6 and carrying a Confederate battle flag.

Seefried’s surrender was delayed as an intermediate appeals court weighed the case now before the Supreme Court. But once the appeals court issued its decision that upheld the use of the obstruction charge against Jan. 6 defendants, the judge ordered Seefried to report to jail.

The Supreme Court’s resolution of the matter could “dramatically alter” how Jan. 6 rioters are sentenced, Rossi said.

“1512 added rocket fuel to the government’s argument at sentencing about the severity of the actions of the defendant,” he said. “If 1512 is declared inapplicable, then these defendants – including my client – have been convicted of a statute for which they should not have been charged.”

Tags Gene Rossi Jan. 6 Capitol riot Justice Department