Washington — Just days after the Supreme Court agreed to examine the breadth of an obstruction law used to prosecute hundreds of defendants for their alleged actions during the Jan. 6, 2021, Capitol riot, the court’s very consideration of the law is already being invoked in both federal district court proceedings and by those already convicted in high-profile Jan. 6 cases.
In one such hearing Friday, U.S. District Judge Beryl Howell warned of a possible backlog of cases involving the federal statute, known as 1512, which accuses defendants of obstructing an official proceeding.
The Supreme Court has not yet scheduled oral arguments in the case challenging how the Justice Department has used the statute, though they are expected to take place in the spring, with a decision coming by the end of June.
The Justice Department has charged more than 327 defendants with the crime, which carries a maximum of 20 years in prison, and more than 50 have pleaded guilty to the count, according to a CBS News review of court documents and proceedings. Former President Donald Trump has also been charged with two counts under the obstruction law — conspiracy to obstruct an official proceeding and obstruction of an official proceeding — by special counsel Jack Smith. He has pleaded not guilty to both of these counts, as well as two others that arose over his alleged actions in the wake of the 2020 presidential election.
Howell said from the bench Friday she has heard from fellow judges in Washington’s federal district court that they have already come across requests from Jan. 6 defendants who are either charged with or have pleaded guilty to the obstruction charge and are now asking to pause proceedings until the Supreme Court determines whether the statute can be applied to Jan. 6-related conduct.
Howell said that such requests are not “unreasonable” and suggested a federal prosecutor narrow a plea offer involving the 1512 count to focus on another charge to avoid delaying the case. Howell indicated the judges in the court could encounter backlogs in scheduling because of the high court’s review.
The U.S. attorney for Washington, D.C., who has charged more than 1,000 Jan. 6 defendants in all, declined to comment, citing the ongoing litigation.
“A significant bargaining chip”
Gene Rossi, a former federal prosecutor who went on to represent a member of the Oath Keepers charged for his conduct on Jan. 6, said a Supreme Court ruling that is favorable to defendants could benefit those who either pleaded guilty to obstruction or were convicted of violating the statute. Defendants whose cases have already been adjudicated can return to the trial court and request either new trials or lesser sentence. The obstruction charge “permeated” every major Jan. 6 trial in the district court in Washington, he said.
“The 1512 charge for the prosecutors was their gold standard, it was their North Star. It was the capstone of their prosecutions,” Rossi told CBS News. “If the Supreme Court removes that capstone, that gold star, that North Star, that could be a tremendous game-changer for many defendants.”
For defendants whose cases are in earlier stages and have not yet gone to trial, Rossi said the Supreme Court’s decision to hear the case helps them, and may change how prosecutors pursue plea agreements.
“The Supreme Court’s acceptance of this case for argument is a significant bargaining chip because any smart, wise and seasoned prosecutor would say listen, I’m not going to insist on 1512 because there’s a risk, and if the defendant wants to plead to lower charges, lower felonies or misdemeanors, I’d rather have a bird in the hand than risk not having anything,” Rossi said.
The Justice Department, he said, is “trying to put a square peg into a round hole” by charging defendants under a statute that arose in the wake of the Enron scandal in the early 2000s. The accounting firm Arthur Andersen was charged with obstruction for destroying millions of documents and electronic records related to Enron as the Securities and Exchange Commission was opening an investigation into the energy giant.
Pursuing the obstruction charge against Jan. 6 defendants was “aggressive” and the Supreme Court deciding to accept the case “is a red flag and a loud gong,” Rossi said.
The Supreme Court case
Requests for the Supreme Court to weigh in on the 1512 statute arose from three criminal prosecutions of defendants charged for their participation in the assault on the Capitol. The three men — Edward Lang, Garrett Miller and Joseph Fischer — were each charged with corruptly obstructing, influencing or impeding an official proceeding. The provision is part of the Sarbanes-Oxley Act, which was passed in 2002 following the Enron scandal.
The defendants each raised problems with various aspects of how the Justice Department used the charge against alleged Jan. 6 rioters, including prosecutors’ interpretation of “corruptly” and whether the statute is broad enough to cover the conduct tied to the Capitol breach.
The Justice Department had urged the Supreme Court to turn away the trio of cases, arguing in part that it was too early for the justices to intervene, given that neither Lang, Miller nor Fischer had been convicted of violating the obstruction statute.
Solicitor General Elizabeth Prelogar, who represents the U.S. before the high court, defended the Justice Department’s use of the measure, writing in a filing that the statute is broad in scope. She said it encompasses conduct directed at the official proceeding itself — the joint session of Congress on Jan. 6, where lawmakers gathered to certify Electoral College votes — rather than records or evidence that might be considered during the proceeding.
“It is therefore natural to say that a defendant obstructs an official proceeding by physically blocking it from occurring — as happened here when petitioners and others violently occupied the Capitol for several hours and thereby prevented the joint session of Congress from doing its work,” Prelogar wrote.
Though all three cases were related and decided by the U.S. Court of Appeals for the District of Columbia Circuit together, the Supreme Court agreed to hear only Fischer’s case challenging the reach of the law.
Defendants push for lighter sentences
Already, high-profile defendants have asked for temporary remedies in their cases as the justices consider Fischer’s appeal.
On Wednesday, former Oath Keepers affiliate Thomas Caldwell asked the federal judge overseeing his case to delay his sentencing scheduled for later this month. Caldwell wasacquitted of more serious chargesbut convicted of the 1512 obstruction statute after standing trial with leader Stewart Rhodes.
“The government is requesting a 14-year sentence for Caldwell based almost entirely upon his finding of guilt” on the obstruction charge, his attorney David Fischer wrote, asking the judge to put a hold on the sentencing until the high court rules.
“We believe that Mr. Caldwell will ultimately be exonerated by a favorable ruling in the Supreme Court, and therefore believe it is appropriate to delay his sentencing,” Fischer told CBS News in a statement.
Another high-profile defendant, Kevin Seefried, who rose to prominence after he was seen carrying a Confederate flag throughout the Capitol at the height of the breach, asked a federal judge in Washington to release him from his three-year prison sentence as the case is considered.
Seefried was convicted of five counts including obstruction of an official proceeding and disorderly conduct last year and has since challenged the legality of the 1512 statute himself. His lawyers argued in court filings Friday that if the obstruction count is dismissed, his prison sentence should be substantially reduced.
“A favorable resolution of the substantial question raised by Mr. Seefried is very likely to result in a sentence less than the total of the time he has already served given the expected duration of the appeal process,” the attorney wrote.
A lawyer for Donovan Crowl, a member of the Oath Keepers who was convicted in July of conspiracy to obstruct an official proceeding and civil disorder, asked Judge Amit Mehta on Friday to pause his sentencing, set for Jan. 12, pending the Supreme Court’s resolution of Fischer’s case.
If the 1512 conviction is tossed out as a result of a ruling from the high court, Crowl’s sentencing “would be materially impacted,” as a number of factors that courts consider at sentencing would be more favorable to Crowl, his lawyer Carmen Hernandez argued in a filing.
Hernandez told CBS News she sought to have Crowl’s sentencing pushed back because she thinks the Supreme Court case “bodes well” for Jan. 6 defendants.
Neither of the federal judges considering Caldwell, Seefried or Crowl’s cases have decided on their requests. Seefried’s public defenders did not respond to CBS News’ request for comment.
Late Friday, another federal judge denied one of the first requests to pause a sentencing hearing set for next week based on the Supreme Court’s review of the 1512 statute. Sara Carpenter’s request was denied as the judge overseeing her case ruled her “sentence is not heavily dependent on her conviction” on the obstruction count because of the other charges she faced.
Carpenter was convicted on seven counts, including felony civil disorder, and the judge’s brief order on Friday noted that the totality of the counts of which she was convicted could pose challenges for other defendants looking to do the same.