A federal judge on Friday dealt a major blow to a Justice Department effort to salvage felony obstruction charges against members of the mob that stormed the Capitol on Jan. 6, 2021, to halt the transfer of power from Donald Trump to Joe Biden prevent.
U.S. District Judge Beryl Howell ruled that the Supreme Court’s recent decision striking down the routinely used indictment left virtually no wiggle room for prosecutors to revive them — even as the high court appeared to abandon a path.
The Supreme Court ruled in a 6-3 vote in June that prosecutors had improperly used the 20-year-old obstruction offense against members of the Jan. 6 gang. That law, an outgrowth of the Enron financial scandal, was aimed at preventing the destruction of evidence used by courts and congressional investigators — and in most cases could not be applied to those who ransacked the Capitol. said the judges.
By the time the Supreme Court ruled, prosecutors had charged more than 300 suspects with obstruction as of January 6. Justice Department attorneys dropped dozens of felony charges in the ensuing months as they watched judges free dozens of defendants from long prison sentences and tried to fend off lawsuits filed by defendants already convicted of the charges.
Prosecutors have indicated they plan to salvage some of the obstruction charges. Seizing a small window left by the justices, they suggested that the charges could survive if the government could prove that members of the Jan. 6 mob intended to “restrict Congress’s access to Electoral College ballots.” ”.
But if Howell’s ruling is upheld on Friday, those hopes are likely to be dashed. There is no evidence that the Jan. 6 defendants specifically attempted to damage election certificates, she noted.
“To the contrary, the record amply demonstrates defendants’ intent to prevent members of Congress from proceeding with the certification,” Howell wrote in a 48-page op-ed. “But members are not evidence.”
She added that their removal by congressional aides even prevented any damage to those ballots while Congress sheltered from the mob. The opinion quotes Democratic Sens. Tammy Duckworth and Jeff Merkley who praised aides for protecting the boxes of election ballots.
“In the context of the overall catastrophic breach of security caused by unscreened rioters roaming the halls and chambers of the Capitol, the removal of ballots from the Senate and House of Representatives chambers has impaired their availability for use in the certification process, rather than hindering that availability. Howell wrote. “There is no evidence that the ‘integrity’ of the electoral votes was affected by the events of January 6, 2021, and the government makes no claim otherwise. Due to the specific events that occurred on January 6, 2021, this theory of reduced availability goes beyond a fair reading. [of the Supreme Court ruling].”
Howell’s opinion was issued in the case against two Proud Boys leaders who pleaded guilty in 2022 and have been in prison for nearly two years. She ordered the defendants, Nicholas Ochs and Nicholas DeCarlo, immediately released from jail while prosecutors decide whether to introduce new evidence or file new charges.
Howell’s ruling is not binding on other judges in federal court in Washington, DC. But the Obama appointee, a former chief judge in the district, wields considerable influence among her colleagues and is among the first to question the viability of the obstruction charge in the wake of the Supreme Court ruling.
The decision also appears to directly conflict with a concurring opinion by Judge Ketanji Brown Jackson in the June decision limiting the application of the obstruction law. Jackson, who served on the district court with Howell before being elevated to the D.C. Circuit and Supreme Court, joined most conservative justices in adopting the more restrained interpretation, but she wrote a solo brief suggesting that prosecutors might find ways to salvage their obstruction cases. against the suspects of January 6.
“[I]That could well be the case [the defendant’s] conduct, as alleged here, involved the impairment (or attempted impairment) of the availability or integrity of things used during the January 6 proceeding,” Jackson wrote. “If so, then [the defendant’s] persecution…can and must continue. That issue remains at the discretion of the lower courts.”
Since the Supreme Court’s ruling, the Justice Department has emphasized that the vast majority of defendants — even those charged with obstruction — are unlikely to see significant differences in their potential prison sentences. Most were charged with other crimes that carried long prison sentences, and others had already served their sentences or waived their right to appeal during guilty plea negotiations.
