DOJ has a near-perfect record in Jan. 6 cases. But it’s starting to stumble.

The federal prosecutors brought nearly 1,200 criminal cases relating to the Capitol Riot of Jan. 6, 2021 with near-unbroken success — until now.

Attorneys at the Justice Department are now facing an increasing list of legal obstacles as they continue to make arrests in response to the pro-Donald Trump protests.

Two Jan. 6 defendants were already released from prison, at least temporarily. And several other cases have been delayed indefinitely. These unexpected obstacles are a stark reminder of both the unique nature of this attack and the incongruity of the laws that prosecutors used to prosecute those involved.

The Supreme Court announced last month that they would review the scope and nature of obstruction of an official proceedings, one of the main felony charges filed against the Jan. 6 defendants. The Supreme Court’s decision last month to review that issue casts doubt on charges brought against hundreds of rioters and even part of Special Counsel Jack Smith’s criminal prosecution against Donald Trump.


“We thought it settled, but no more,” U.S. district judge Beryl Howell ruefully said during a hearing held last month. She was referring to the interpretation of the obstruction laws.

In recent weeks, also two federal judges made surprise rulings which undercut the two key misdemeanors brought against almost every defendant on Jan. 6. These charges were related to trespassing into a building protected by the Secret Service. The judges were Carl Nichols, appointed by Trump, and Christopher Cooper, appointed by Obama. They ruled that defendants must have known that Vice President Mike Pence, or Secret Service agents, would be on Capitol grounds, or expected to be there, to be found guilty. This is a much higher standard than was previously believed.

These adverse rulings could have a limited impact. The Justice Department may be able to influence appellate courts. Hundreds of defendants already have accepted plea agreements that limit their appeal rights. Many of them have already served jail time or not received any jail time.

The legal landscape surrounding the investigation — the largest in DOJ’s history — remains as uncertain as ever.

Obstruction statute under review

This spring, the Supreme Court will hear arguments on whether the federal obstruction laws have been abused by prosecutors. The Supreme Court will make a decision by June. The high court’s decision has already impacted dozens of cases of felony riots and could affect many more.

A federal judge released a defendant who was sentenced to jail on Jan. 6, five months after his release, citing that the justices had considered the statute.

Thomas Adams was released by U.S. district judge Amit Mehta after he had been found guilty of obstruction and misdemeanors. Mehta stated that Adams’ sentence would have been significantly shorter if the obstruction charge had not been brought against him. He therefore released Adams until the Justices rule on whether the charge is valid.

Mehta said that if the Supreme Court decided to hear the case, it suggests the outcome will be at least “close.”

The next day, U.S. district judge John Bates ordered that another defendant, Alexander Sheppard be released when his misdemeanor sentences expire, until the Supreme Court’s decision.

Three other federal judge — Chief U.S. district Judge James Boasberg, Richard Leon and Dabney Frederick — have delayed pending cases pending on Jan. 6, in which obstruction was the only felony charged.

Over 30 defendants charged with crimes under the Jan. 6 Act have also asked to delay trials, sentencing or prison reporting dates. Many who are facing additional felony charges such as assault or civil disorder, have tried to delay proceedings without success.

Justice Department has agreed to stop appealing the issue of obstruction. Prosecutors said in a series of filings that the ruling of the high court could “plainly affect” the outcome of these appeals.

Howell, a judge who expressed his concern over the recent wave of delays, lamented that the status of obstruction statute was still undetermined.

She said, “We have to move this case forward,” in court. If not, how will the future look for the entire court in June, July and August 2024?

The Supreme Court may resolve two issues that have been raised repeatedly by Jan. 6 defendants about the obstruction laws. The first is whether the law, enacted after the Enron affair, is only meant to cover tampering of physical evidence such as paper documents or file. Nearly all district judges in Washington have rejected this argument. Prosecutors also argued that, even if the law were to be interpreted that way, defendants of Jan. 6 would still face charges because they prevented Congress from reviewing Electoral College Certificates.

Justices could also examine the “corrupt purposes” requirement of the obstruction laws, which requires defendants to act with an “unlawful purpose.” Some defendants claim that this standard is used by prosecutors to show that defendants were aware that their conduct was wrong.

According to the U.S. Attorney’s Office in Washington, D.C., about 100 defendants face charges where obstruction is the sole felony charge.

Howell may be wrong about the final consequences of the Jan. 6 riots. The majority of more than 300 defendants who were charged with obstruction of a formal proceeding also had other felonies such as assault, civil disturbance or impeding the police. The outcome of the Supreme Court’s case will not have a significant impact on their sentences or chances of imprisonment.

If the obstruction charge against Trump is thrown out, it could have serious consequences for the prosecution of Trump in Washington on charges of election subversion.

The statute is the basis for two of the four federal charges against the former President. If the high court adopts an even stricter standard, obstruction charges may be dropped or altered in order to reflect the new interpretation. This could cause delays.

Trespass charges narrowed

The Justice Department’s new headaches are not limited to Trump’s obstruction case or any other cases.

Nichols ruled recently that defendants who broke into the Capitol Building on Jan. 6, could only be found guilty if they knew Vice President Mike Pence was inside or one of his family members. Cooper did the same earlier this month.

Other district judges have also indicated that they are now gr