A federal judge said late Monday that the Justice Department cannot charge Jan. 6 defendants with obstructing Congress’s certification of President Biden’s 2020 election victory unless the defendants tampered with official documents or records in the attack on the U.S. Capitol.
In striking down the lead felony charge brought in the government’s Jan. 6 investigation — punishable by up to 20 years in prison — U.S. District Judge Carl Nichols broke with at least seven other U.S. trial judges in Washington who have ruled that prosecutors can use the obstruction charge in Capitol riot cases.
Nichols’s ruling could complicate the felony prosecutions of many of the roughly 275 Jan. 6 defendants facing the same pending count, with defense attorneys saying it could slow down plea negotiations or even eventually cause the government to recharge or retry cases….
ut if the government doesn’t appeal, continuing to prosecute obstruction cases creates the risk that convictions secured now will be undone by a future adverse ruling, forcing retrials.One defense lawyer familiar with Jan. 6 cases said colleagues are likely counseling clients not to plead guilty to a charge that may not be a crime. In that way, Nichols’s decision has given defendants more leverage in plea talks….
At issue is an obstruction charge carrying some of the heaviest penalties leveled against nearly 300 defendants, including associates of the Oath Keepers, Proud Boys and Three Percenters, far-right groups that allegedly conspired and prepared for violence. The government has also brought the charge against scores of individuals not accused of attacking police or destroying property but facing some of the most egregious allegations — such as occupying the Senate chamber, sitting in the vice president’s chair and targeting government officials.
Prosecutors have sought to differentiate such acts from protest-related civil disobedience that rarely results in prison time and more politically charged offenses such as seditious conspiracy or the use of political violence against U.S. authorities to prevent Biden’s inauguration.