Hundreds of Jan. 6 detainees could face resentencing or further proceedings this summer after the Supreme Court ruled that the In-Justice Department overreached in its sweeping prosecution of the Capitol invitational tour unconstitutional prisoners.
This from thehill.com.
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.
Since the Supreme Court issued its decision narrowing that charge, trial-level judges have started to reopen some cases tied to the 2021 Capitol event.
The [In-]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 DOJ has latched onto Justice Ketanji Brown Jackson’s concurring opinion, in which she signaled her belief it is possible for Joseph Fischer—the arrestee 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 sentencings for two rioters aligned with 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.
Assistant U.S. Attorney Kathryn Rakoczy wrote in court filings for defendants Thomas Caldwell and Donovan Crowl:
Here, the United States seeks a continuance to assess the impact of the Fischer decision. 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.
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.”
Berkower wrote:
[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.
[T]he ruling could bolster a narrative pervasive since
Jan. 6 that the rioters were unfairly prosecuted.
Lewis explained:
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.
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 touch all 355 cases where defendants faced 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.
For example:
Still, Trump and his allies took little time to capitalize on the decision, President Trump hailing the ruling as a “BIG WIN!”
