DOJ dropping most Jan. 6 obstruction charges in pending cases

Multiple defendants from the Jan. 6, 2021, riot at the U.S. Capitol who faced charges for obstructing Congress are seeing those charges dropped, according to a Washington Examiner review of court records, after the Supreme Court ruled that the Justice Department had applied the charge too broadly.

In the case known as Fischer v. United States, the Supreme Court ruled 6-3 that President Joe Biden’s Justice Department wrongfully levied a felony charge of obstruction of an official proceeding against Jan. 6 defendants, finding the statute only applies to conduct such as manipulation or destruction of documents. Ever since then, defendants who have yet to be tried or sentenced are seeing a consistent windfall from that decision.

Prominent Jan. 6 attorney speaks out

Bill Shipley, a prominent defense attorney who has represented dozens of Capitol riot defendants, told the Washington Examiner that prosecutors have been dropping the obstruction charge, known as 1512(c)(2), “and offering pleas to other charges.”

The Washington Examiner first reported on this emerging pattern in mid-July, just weeks after the Fischer ruling, but since then, the rate of cases affected by the high court’s decision “has become more than just a trickle,” Shipley said. On Wednesday, the attorney posted to X that the government is now “doing it in every case that is about to go to trial.”

There are 259 people, around 2% of all Jan. 6 defendants, who have been charged with the felony obstruction count, according to the DOJ, with around 133 having already been sentenced. Seventeen of the 133 convicted of this charge and no other felony are serving incarceration sentences.

Now, up to 126 defendants awaiting sentencing or pending trial could stand to benefit from the recent pattern of dropped obstruction charges, whether they’re paying thousands of dollars by the hour for an attorney or if they’re bold enough to represent themselves in court.

“I’m not here claiming that great lawyering by me brought that about,” Shipley wrote on X in reference to the flow of 1512(c)(2) counts dropped.

The proof is in the case filings

The case of Deborah Lynn Lee, a 58-year-old woman from northeastern Pennsylvania who recently saw her felony obstruction charge dropped on her birthday, Aug. 2, is a prime example of the DOJ’s retreat.

Lee still faces misdemeanor counts of entering or remaining in a restricted building or grounds, disorderly and disruptive conduct in a restricted building or grounds, disorderly conduct in a Capitol building, and parading, demonstrating, or picketing in a Capitol building. Altogether, she could face up to three years in prison and fines up to $210,000, though it’s still a far cry from the possible 23 years in prison and $460,000 in fines she faced if she had not convinced prosecutors to drop the obstruction count.

Notably, Assistant U.S. Attorney Alexander Diamond provided no explanation for the dismissal of the felony count.

Lee’s trial was slated for Sept. 4, but her attorney, Shipley, insists that she can opt for a magistrate judge for her trial now that it is only a four-count misdemeanor case, meaning another new trial date will likely be set for her.

Another example recently unfolded in the case of Michael Pope, who traveled with his brother, William Pope, to the “Stop the Steal” rally on Jan. 6 in support of then-President Donald Trump’s protest against his election defeat. Prosecutors on Aug. 2 agreed to dismiss Michael Pope’s obstruction count, citing the “interest of justice and in order to clarify and simplify the issues to be resolved as a result of the trial of the defendant.”

William Pope is defending himself in his own case, and his judge has ordered prosecutors to provide their position on his obstruction charge before the next status conference on Aug. 23, a signal that he, too, could see this charge dropped.

The growing trend of dropped obstruction charges by no means suggests the affected defendants are completely off the hook for their alleged crimes, as not one defendant awaiting a trial or sentence is charged solely on the obstruction count. However, the pattern may suggest the DOJ is now more focused on the expediency of adjudicating pending cases while prosecutors continue to evaluate what to do with 1512(c)(2) cases moving forward.

In recent weeks, prosecutors within U.S. Attorney Matthew Graves’s office have written in court filings the government is evaluating its approach to 1512(c)(2) “carefully,” while sticking firmly to the notion that the Supreme Court did not “reject application” of the felony count to the riot.

“Rather, the Court explained that the government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in the proceeding—such as witness testimony or intangible information—or attempted to do so,” Graves’s office wrote in response to defendant Michael Oliveras, who is seeking to postpone his sentencing in light of Fischer.

Former federal prosecutor and National Review columnist Andy McCarthy told the Washington Examiner that he did not have first-hand knowledge of the DOJ’s handling of the cases with felony obstruction counts but said it “makes sense” that prosecutors have been dropping those counts.

“If a case is not scheduled for trial any time soon, the prosecutors can bide their time and try to negotiate some kind of guilty plea, knowing that, if negotiations fail, they can always dismiss the case down the road,” McCarthy said. “But if the case is already scheduled for trial, and the prosecutors believe they can’t win because of the Fischer decision, it’s not surprising that they’d drop those cases.”

What about defendants who have already been sentenced?

For defendants who have already pleaded guilty to obstruction felony counts or have already been sentenced, prosecutors are maintaining that those convictions should not be vacated.

According to DOJ sentencing data, at least 35 people have already pleaded guilty to the obstruction count or other charges they faced.

Prosecutors cite the Supreme Court’s 1998 precedent in Bousley v. United States that makes it difficult for defendants to overturn convictions on the grounds that their actions were later deemed noncriminal unless they can demonstrate “actual innocence,” a significant procedural hurdle.

In opposition to motions to vacate by defendants such as Proud Boys members Nicholas Ochs and Nicholas DeCarlo, DOJ officials argue that those people should not be able to back out of their deals. Both accepted guilty plea deals to one count of violating 1512(c)(2), are serving their four-year prison sentences, and are scheduled to be released in September 2025.

Ongoing Fischer evaluation matters for Trump’s case

The most high-profile defendant facing the felony obstruction charge is Trump, who recently saw his four-count criminal trial in Washington land back into the hands of U.S. District Judge Tanya Chutkan after an eight-month delay spurred by his bid to have the Supreme Court find he enjoys presidential immunity.

Special counsel Jack Smith has said he will still defend the obstruction counts in Trump’s case over the former president’s “efforts to use fraudulent electoral certifications rather than genuine ones at the Joint Session,” according to a brief filed in April, two months before the Fischer decision.

Additionally, legal experts concede that the Supreme Court did not preclude federal prosecutors from applying the 1512(c)(2) statute as it was originally intended, such as prosecuting acts of evidence tampering such as the document shredding in the Enron accounting scandal.

“If, in highly unusual cases, [prosecutors] have evidence of intention to destroy or manufacture evidence or intimidate witnesses, those cases could survive the Fischer ruling,” McCarthy told the Washington Examiner.

Nevertheless, whether the obstruction charges are sustained in the Trump indictment may depend on whether the case itself survives, given that Trump would likely dismiss it entirely if he wins the Nov. 5 presidential election.

The Washington Examiner did not receive a response from the U.S. Attorney’s Office for the District of Columbia when reached for contact.