Prosecutors Try Novel Tack for Jan. 6 Rioters
BY ARUNA VISWANATHA
WASHINGTON—The U.S. criminal investigation into the Jan. 6 Capitol riot is entering a more contentious phase as it nears the one-year mark, with initial trials set to test the government’s strategy of using provisions first laid out in a 2002 financial-industry law to prosecute some accused of leading the mob.
Around 700 people who stormed the building while Congress met to certify President Biden’s win have been arrested this year, including more than 200 who face charges of assaulting officers or engaging in other violent conduct. About 150 of the rioters have pleaded guilty, many to misdemeanor crimes including entering a restricted federal building. The attack left more than 100 police officers injured and caused millions of dollars in damage as hundreds of supporters of then-President Donald Trump, some clad in military battle gear, mobbed the seat of the Legislative Branch in a bid to stop the election certification, forcing Congress and Vice President Mike Pence to evacuate the chambers as chaos engulfed the building.
In the riot’s wake, prosecutors searched for tools to elevate some of the cases beyond the misdemeanor charges often applied for unruly but far less momentous Capitol protests. They turned to a provision in the 2002 Sarbanes-Oxley Act, enacted after the accounting-fraud scandal and collapse of Enron, which imposes a potential 20-year sentence on those convicted of obstructing an “official proceeding.” The measure expanded what counts as obstruction and closed loopholes used by people involved in the Enron fraud.
Around 270 of the rioters face that felony charge, and some of them have coalesced around an effort to poke holes in that central element of the government’s strategy—with limited success to date. Prosecutors have offered to drop additional charges for some of the rioters if they plead guilty to that count and accept a punishment that would likely involve more than three years in prison. Several have taken that deal, with at least two sentenced to date along those lines. Others have rejected those conditions— specifically the enhanced sentence requirements—and are opting instead to go to trial. Many rioters who face that charge have argued in court filings that the law is meant to apply to obstructing pending investigations—where it has commonly been used—rather than an event like the certification of electoral votes, which some of the defendants described as a pro forma event.
Some former prosecutors said the events of Jan. 6 prompted the government to think creatively about how to charge the rioters. “I do think the charge makes sense under the circumstances, but I also think it’s necessarily novel, because these facts haven’t arisen before,” said Ben Glassman, a former U.S. attorney in Ohio. Defense lawyers say they particularly object to prosecutors’ demands that defendants agree to the enhanced punishments under a plea deal that bump a sentence to 41 months or more, which they say is out of line with past cases.
“The government is saying you have to agree to these, too, in order for us to accept a guilty plea,” said William Shipley, a lawyer for several Jan. 6 defendants, including self-described “QAnon Shaman” Jacob Chansley. Mr. Shipley, whom Mr. Chansley hired after he pleaded guilty and was sentenced, said the requirements tripled the likely sentence defendants who plead guilty to that charge would receive. Mr. Chansley has since filed a notice that he may seek to challenge his plea.
Last week, two federal judges in Washington separately rejected arguments that the crime described in the 2002 statute wasn’t appropriate. “The term ‘official proceeding’… means ‘a proceeding before the Congress,’ ” U.S. District Judge Amit Mehta, who is overseeing one of the most high-profile cases to stem from the riot against 17 people affiliated with the Oath Keepers militia, wrote in a Dec. 20 opinion. “A straightforward reading of that definition easily reaches the Certification of the Electoral College vote,” he wrote.
One of the first to test that idea at trial will likely be Robert Gieswein, a Colorado man who is expected to go before a jury Feb. 24. He allegedly clambered through the first broken window moments after it was smashed with a stolen police riot shield and then battled with officers in the building. Also scheduled to face trial in February is another alleged rioter, Guy Reffitt of Texas, who spoke of dragging lawmakers “out of the Capitol by their ankles,” and led a group of rioters up the Capitol steps to confront police, according to prosecutors.
Messrs. Gieswein and Reffitt have both challenged the government’s use of the obstruction charge. In Mr. Reffitt’s case, U.S. District Judge Dabney Friedrich said this month that she would defer ruling on that question until his trial. “Because it is unclear, based on the indictment alone, what actions Reffitt allegedly engaged in to obstruct and impede the official proceeding, the Court cannot determine at this early stage of the proceeding whether the charges are unconstitutionally vague as applied to him,” she wrote.
