The Justice Department is not letting a Supreme Court spanking derail its pursuit of those who stormed the U.S. Capitol on Jan. 6, 2021.
Since Friday, when the high court said the federal government was misusing a law to prosecute some of the defendants, the government has announced two new arrests, reached two new plea deals and won prison sentences in three other cases involving Jan. 6 defendants.
None of them involved the obstruction charge that the Supreme Court rejected. Prosecutors made clear, though, that they haven’t given up on the obstruction charge just yet.
In court filings this week, the U.S. attorney’s office for the District of Columbia, which is handling the cases, said it’s looking to see if there’s still any wiggle room in the justices’ ruling that would allow dozens of cases to stand.
The issue is witness tampering law and section 1512(c)(2), which was written in the wake of the Enron document-shredding scandal to criminalize obstructing an official proceeding.
Prosecutors had argued the Electoral College count that was disrupted by the mob attack at the Capitol qualified. The justices, in a 6-3 ruling, said the law focuses on tampering with evidence, and the Electoral College count taking place at the Capitol on Jan. 6 does not fit that.
The Biden Justice Department had brought hundreds of cases with the obstruction charge as an element.
This week it said it’s not ready to let them go. In a filing in one of the Jan. 6 cases prosecutors indicated they are trying to figure out if they can connect any of the defendants’ behavior to the standard the justices set.
“Out of respect for judicial economy, and to ensure a uniform and consistent approach before each judge of the District and Circuit, the government will evaluate its approach to 1512(c)(2) carefully,” U.S. Attorney Matthew Graves argued. “Therefore, the government respectfully requests the Court hold in abeyance for at least another 30 days the question of whether any additional proceedings are necessary in this case.”
Christopher Macchiaroli, a lawyer for some Jan. 6 defendants, said the feds are dragging their feet on the inevitable outcome.
“Whether the charges are dismissed in six days, six weeks, or six months, they will ultimately have to be dismissed,” he told The Washington Times in an email. “The government never charged the obstruction offense in the context of obstruction relating to documents (as the statute was initially adopted for) and the defendant’s Indictments do not allege such conduct either.”
One of Mr. Macchiaroli’s clients is Luke Wesley Bender, who was convicted on the felony obstruction charge and some misdemeanors.
He has completed a 12-month sentence for his misdemeanor convictions and has asked the court to revisit his obstruction charge in light of the Supreme Court’s ruling.
The Justice Department said in its filing that it’s too early to agree to that.
President Biden has made the events of Jan. 6 a centerpiece of his presidential campaign, arguing former President Donald Trump prodded the mob’s attack to try to subvert the results of the election.
The Justice Department’s focus on the cases has drawn criticism and comparisons to its more relaxed approach to the left-wing protesters from the summer of 2020, who rioted in city centers and attacked federal buildings — most notably the courthouse in Portland, Oregon.
Defendants who attacked police in Portland have been given minor sentences or offered pretrial diversion while Jan. 6 defendants have faced significant jail time and a much more strict approach by the government to plea deals.
Attorney General Merrick Garland has prioritized the Jan. 6 cases and last week expressed his frustration with the Supreme Court’s ruling.
He said those who were part of the invasion of the Capitol will still see justice.
His department has brought charges against roughly 1,430 people. There are 249 cases where someone was either already convicted or is still charged with violating the obstruction of an official proceeding.
In 52 of those cases the obstruction charge is the only felony for which they were convicted. Of those, 27 are still in prison.
Mr. Macchiaroli, a former federal prosecutor, said the government is racing a political clock as it tries to preserve as many cases as it can and to add others to the pile.
“DOJ is feverishly trying to arrest as many people as possible and get as many cases into the system in the fear that if the administration changes after the election in November, additional defendants will not be charged and current cases will be resolved on more favorable terms,” Mr. Macchiaroli said.
The U.S. attorney’s office for the District of Columbia, which is handling the cases, disputed the notion that the pace of cases has changed. Spokesman Daniel Ball said the month-to-month arrest numbers have been “fairly consistent.”
He declined to discuss the office’s strategy going forward.
Friday’s arrest involved Michael Jerrett Amos of Naples, Florida. He was first arrested for breaking the curfew imposed after the attack on the Capitol. The FBI then matched his clothing to a figure who was part of the mob that broke through police barricades.
The FBI said Mr. Amos used pepper spray against police officers and used the American flag and pole he was carrying as a prod to help shove rioters through the police line guarding the Capitol.
He is charged with assaulting officers, obstructing officers, entering restricted grounds and disorderly conduct.
On Monday, the FBI arrested David Michael Camden of Tontitown, Arkansas. Again using clothing, the government matched him to a man they say tried to push a bike rack barrier into the line of officers, sprayed a fire extinguisher at police then climbed a scaffold and raised a flag associated with the anti-government “Three Percenters” movement.
Mr. Camden was charged with assaulting officers, civil disorder, disorderly conduct at the Capitol, violence at the Capitol, remaining on restricted grounds, disruptive conduct on disruptive grounds and violence on restricted grounds.
Prosecutors also struck plea agreements Monday with Robin Lee Reierson of Illinois and Kyle Andrew Campbell of Ohio, both on charges of assaulting law enforcement.
And courts handed out a four-month prison sentence Friday to Patrick Allen Bournes, of California, for civil disorder. And on Tuesday judges sentenced Brian Healion, of Pennsylvania, for felony disorder, and more than three years in prison to Raymond Joseph Cholod, of Florida, for being at the front of the mob that charged up the Capitol tunnel and later for throwing a stick toward officers.
The Justice Department had wanted a 55-month sentence for Cholod. His lawyer had suggested something closer to a year or 18 months.
• Stephen Dinan can be reached at sdinan@washingtontimes.com.
Please read our comment policy before commenting.