Supreme Court action already upending January 6 rioter sentencings, being looked at by Trump defense
A supporter of US President Donald Trump carries a Confederate flag after storming the US Capitol on January 6,2021 The Supreme Court’s recent decision to take a case challenging how the Justice Department prosecutes January 6 rioters has already put on hold several rioters’ sentencings and could affect hundreds more cases — including Donald Trump’s.
If the challenge is successful, the Supreme Court could potentially wipe away two of the four counts that special counsel Jack Smith has brought against the former president in his federal election interference case, and upend felony convictions for dozens of January 6 rioters.
Since the Supreme Court agreed last month to take the case, Fischer v. US, more than a dozen January 6 defendants have already asked judges to halt their upcoming sentencings and trials. While some judges have balked, others have agreed to delays for the rioters in a handful of cases.
Last week, one convicted rioter already in jail successfully won an early release set for May. That rioter, Alexander Sheppard, will serve only six months of his 19-month sentence. Depending on how the Supreme Court rules, he may be free after that or be forced to return to prison to finish out his sentence.
Another rioter, Kevin Seefried, the Delaware drywall installer who notoriously carried a Confederate flag into the Capitol, is arguing for a similar early release. A few others have been able to postpone their sentencings, meaning they won’t be sentenced or have to report to jail until the Supreme Court rules on the case, which might not happen until late June.
Challenge to DOJ conviction strategy
The case – brought by Joseph Fischer, a former police patrolman from central Pennsylvania who was convicted of obstruction for charging the police line at the Capitol – cuts to the heart of how the DOJ has secured felony convictions against hundreds of January 6 rioters. In those cases, the DOJ successfully argued they committed a felony by obstructing a federal proceeding.
The question raised by Fischer is whether that law could apply to congressional proceedings like the certification of the 2020 election that was disrupted on January 6, 2021.
That is the same law that Smith used to secure an indictment on two of the charges against Trump in the federal election interference case. The former president’s lawyers plan to make challenges in his case around the obstruction law if it returns to the trial judge before the Supreme Court rules, a source has told CNN.
Trump’s case is currently on hold while an appeals court
considers the question of immunity from criminal charges around the
presidency. Currently, the law in the DC federal court is that two of
Trump’s four charges — conspiracy to obstruct an official proceeding and
obstruction – should stand.
But if the Supreme Court were to limit or disagree with the Justice Department, that could impact Trump’s trial, which is set for March, the person said. It’s unlikely that Tanya Chutkan, the judge overseeing the case, would delay his trial if the case returns to her before the Supreme Court decision in Fischer.
If Trump’s trial happens before the Supreme Court rules, and changes the DOJ’s ability to use the law, that could cause Trump to be retried, the source said.
The special counsel’s office has already argued that appeals over the obstruction charge shouldn’t affect Trump, because his alleged crimes included falsifying electoral vote certificates and sending them to Congress, according to a previous court filing.
Rioters asking for relief
Several defense attorneys representing January 6 rioters are deciding whether to ask for relief in the DC District Court, while some have already attempted to pause upcoming trials or sentencings, according to people familiar with their strategies. That includes both lawyers working for the federal public defender service, as well as private attorneys.
“The opportunity is for these cases to be reversed,” Kira West, a defense attorney for January 6 rioters. “It was a happy day for me when it happened. I think the court is thinking about reversing the case.”
One of West’s clients, Alex Harkrider, tried to hold off going to trial in early January, because of the Supreme Court’s action. A Trump supporter who had traveled from Texas for the January 6 rally in Washington, DC, Harkrider had argued his case was directly affected because he said the primary felony charge he faced was obstruction.
But Judge Royce Lamberth still held a non-jury trial for Harkrider on the first workday of this year. The judge found Harkrider guilty of obstruction and other serious charges, like carrying a tomahawk axe inside the Capitol while the vice president was on the premises.
The outcome at the Supreme Court is likely to have the greatest impact on riot defendants whose sole felony count is obstruction of an official proceeding — in other words, those who weren’t violent during the riot.
That amounts to roughly two dozen defendants who have been sentenced as of early January for a single felony charge of obstruction, the US Attorney’s Office for the District of Columbia said.
Those who are charged with felony obstruction face potentially far more prison time if convicted than those charged with only misdemeanor counts.
So far, a trio of federal judges in Washington, DC, have put on hold some upcoming January 6 sentencings that would bring into play the interpretation of obstruction convictions.
“Given that the only felony count Defendant was convicted of was [the obstruction charge], which will thus play a substantial role in his sentencing, the Court believes that postponing such sentencing until after the Supreme Court decides U.S. v. Fischer is appropriate,” James Boasberg, who is the chief judge of the district court, wrote in one January 6 case in late December.
Yet other rioters, such as Sara Carpenter, a former police officer, failed in their attempts to cancel their sentencings or trials because of the Supreme Court activity.
Boasberg said in Carpenter’s case, “Defendant’s sentence is not heavily dependent on her conviction under” the obstruction law that the Supreme Court is considering.
Rioters accused of violence toward police — those more likely to be awaiting their trials and sentencings in jail — are less likely to be affected significantly by the Supreme Court’s obstruction ruling, because of the seriousness of assault charges. Nearly 500 rioters have been charged with assaulting officers at the Capitol.
DOJ pushback
The US Attorney’s Office for the District of Columbia, which is prosecuting the Capitol riot cases, has generally opposed delaying trials and sentencings while waiting for the Supreme Court ruling because they want the cases to move along.
“Regardless of the implications of Fischer, the public and the government have a right to a prompt resolution of this case with respect to the other charges on the indictment,” the Justice Department wrote in the Harkrider case.
In the case of Seefried, who carried the Confederate flag inside the Capitol, the Justice Department also argued he shouldn’t be released early into the middle of another presidential election.
If he were released now, after learning “the day-to-day reality of confinement in prison,” prosecutors wrote, Seefried might be at risk of fleeing from the justice system.
“The Court would be releasing defendant into the same political maelstrom that led him to commit his crimes in the first place,” prosecutors from the US Attorney’s Office wrote on January 8.
The federal judge overseeing the case, Trevor McFadden, hasn’t yet decided if Seefried should stay in detention.
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