What could happen if the Supreme Court sides with the January 6 rioters

If the Supreme Court undermines the prosecution of hundreds of people accused of joining the January 6, 2021, US Capitol riot, former President Donald Trump and his allies are poised to promote that ruling as a rebuke of the Justice Department’s efforts to prosecute members of the pro-Trump mob.

But even if the court’s conservative majority tosses the felony charge prohibiting individuals from obstructing an “official proceeding” that federal prosecutors have wielded against alleged rioters, the ramifications may be more about politics than about whether people go to jail.

The case before the nine justices grapples with whether the Justice Department went too far when it used a federal obstruction law enacted in response to the Enron accounting scandal to charge hundreds of people involved in the US Capitol riot.

Critics claim the charge, which carries a prison sentence of up to 20 years, was intended to prevent evidence tampering before a trial or investigation – not an insurrection in support of a president who lost reelection.

“Attempting to stop a vote count or something like that is a very different act than actually changing a document or altering a document or creating a fake new document,” attorneys for Joseph Fischer, the riot defendant who brought the case the Supreme Court is considering, argued during oral arguments in April.

It is not clear how many criminal cases a decision by the justices will affect. Hundreds of people have been charged with obstructing an official proceeding, but most defendants convicted of the charge were also found guilty of additional felony or misdemeanor counts.

Only about 50 people have been convicted of and sentenced for only obstruction, according to Solicitor General Elizabeth Prelogar.

Trump is likely to take any ruling in favor of Fischer to try to further undermine the Justice Department’s prosecution of his supporters who stormed the Capitol.

The former president has repeatedly asserted that he would consider pardoning those convicted of crimes related to January 6 if reelected, calling them “victims” who were merely “protesting a rigged election.”

And depending on how the court rules, Trump might also attempt to have that charge thrown out in his own case. The former president is facing the same charge as part of special counsel Jack Smith’s election interference case in Washington, DC.

Trump’s allies have already taken to the public stage to call any decision against the Justice Department a win. Before the case was presented to the justices, several Republican lawmakers filed a brief to the high court arguing the Justice Department is using the law as an “all-purpose weapon against perceived political opponents.”

Several of Trump’s vice-presidential hopefuls have called the January 6 prosecutions unjust.

Sen. J.D. Vance of Ohio, for example, said last month that rioters are facing the “complete weight of the Justice Department … when, at worst, they are accused of misdemeanors.”

The court is expected to rule by the end of the month.

Charging decisions and sentences

In the January 6 cases, prosecutors have charged people who they believe showed a clear intent to obstruct, or block, Congress from certifying the 2020 presidential election.

“That obstruction can often be in terms of talking about voting, talking about ballots, talking about the actual Electoral College and their activities that day, as opposed to just a general ‘We want Trump to win,’” Louis Manzo, a former federal prosecutor who worked on some of the highest-profile cases stemming from the January 6 riot, said in an interview with CNN.

Manzo said there had to be evidence an individual “knew what was going on inside the Capitol and that they took actions consistent with depriving Congress of their ability to act.”

Prelogar articulated that nexus to the justices, saying during oral arguments that prosecutors are required to “show that the defendants had knowledge that Congress was meeting in the joint session on that day” and “specifically intended to disrupt the joint proceeding” to secure a conviction on the obstruction charge.

Prosecutors have often coupled the obstruction charge with other felonies – including for assault, which also carries a maximum of 20 years in prison, or for civil disorder, which carries a five-year maximum – against rioters. Any ruling from the justices would not bar prosecutors from continuing to bring those charges, or from advocating for hefty punishments, against Capitol riot defendants.

Justice Brett Kavanaugh nodded to this point during the April oral arguments, pushing Prelogar on why other charges levied against defendants alongside obstruction aren’t “good enough from the Justice Department’s perspective?”

“Because those counts don’t fully reflect the culpability of [defendants’] conduct on January 6,” Prelogar responded.

Even in cases in which January 6 defendants were convicted of multiple criminal charges, the average prison sentence was just over four years, a CNN analysis shows – far less than the 20-year maximum the obstruction count carries. And, according to Prelogar, the average sentence for the defendants convicted of only obstruction has been half that.

“Almost nobody is getting anywhere close to the 20-year statutory maximum that the obstruction charge brings,” Manzo said, adding that the obstruction charge “carries on paper a lot of weight” but “it doesn’t always carry that much influence as sentencing.”

Attorney Carmen Hernandez, who has represented numerous January 6 defendants, said in an interview that many defendants who pleaded guilty agreed to waive certain rights about the appeals process, which may bar them from launching extensive challenges to their convictions.

Among the most lasting effects of the Supreme Court’s impeding ruling will be that dozens of cases once believed to be settled could return to court to rehash their sentences.

“I’m sure the courts are going to be flooded with claims” from defendants who were convicted under the obstruction law, Hernandez said. “They definitely will have to be heard.”

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