To Prosecute Jan. 6 Capitol Rioters, Government Tests Novel Legal Strategy

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As the first trial approaches, some defendants are challenging the use of the Sarbanes-Oxley Act to obtain felony, harsher sentences.

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The attack injured more than 100 police officers and caused millions of dollars in damage as hundreds of supporters of then-President Donald Trump, some dressed in military combat gear, occupied a legislative branch seat to prevent certification. There was chaos in the building, forcing Congress and Vice President Mike Pence to be evacuated.

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In the wake of the riots, prosecutors searched for tools to elevate some cases beyond the misdemeanor charges leveled for the often uncontrolled but much less significant Capitol protests. It turned to a provision in the Sarbanes-Oxley Act of 2002, enacted after the accounting-fraud scandal and the collapse of Enron, that imposes a potential 20-year sentence on those convicted of obstructing “official proceedings.” The measure expanded what counts as interruptions and closed loopholes used by those involved in the Enron fraud.

About 270 of the rioters face that felony, and some of them have pooled around an attempt to pierce that central element of the government’s strategy – with limited success to date.

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Prosecutors have offered to drop additional charges for some rioters if they plead guilty to that count and accept a sentence that could extend to more than three years in prison. Many have taken that deal, with at least two being sentenced along those lines. Others have rejected those conditions – specifically the increased sentence requirements – and are opting instead to go to trial.

Many of the rioters facing that charge have argued in court filings that the law applies to obstruct pending investigations – where it is more commonly used – rather than a phenomenon such as the authentication of electoral votes, which some defendants have called. described as one. Pro forma event that was “formal or ministerial”.

Some former prosecutors said the unprecedented events of January 6 prompted the government to think creatively about how to charge the rioters. “I think the allegation is understandable under the circumstances, but I also think it is necessarily novel, because these facts have not arisen before,” said Ben Glassman, a former U.S. attorney in Ohio who has Has prosecuted terrorism cases.

Defense lawyers say they specifically object to prosecutors’ demands that the defendants agree to an increased sentence under a plea deal that increases the sentence to 41 months or more, which they say. are in line with the previous cases.

“The government is saying that you have to agree to these too, so that we can accept a guilty plea,” said William Shipley, counsel for several Jan. 6 defendants, including self-described “Qunon shaman” Jacob Chansley. Mr Shipley, who was hired after Mr Chancellor pleaded guilty and sentenced, said the requirements triple the potential sentence defendants plead guilty to that charge. Mr. Chancellor has since filed a notice seeking to challenge his petition.

Last week, two federal judges in Washington rejected separate arguments that the offense described in the 2002 statute was not justified. The term “official proceedings” means ‘proceedings before Congress,'” said US District Judge Amit Mehta, who is overseeing one of the most high-profile cases stemming from the rioting against 17 people linked to the Oath Keepers militia, 20 wrote in the December opinion. “A direct reading of that definition leads easily to the certification of the Electoral College vote,” he wrote.

One of the first people to test that idea at trial will be Robert Giswin, a Colorado man who is expected to appear before a jury on February 24. He was reportedly first hit with a broken window moments after police rioted with a stolen shield and then fought with officers in the building. On video a day earlier, Mr Giswain said politicians had “completely destroyed and sold our country”. [it] To the Rothschilds and the Rockefellers.”

Surveillance footage showed Mr Gizwin spraying officers with a type of pepper spray, raising their fists and shouting as rioters pushed officers forward. In a failed attempt to keep Mr. Giswain out of prison while awaiting trial, his lawyer, Assistant Federal Public Protector Ann Rigby, wrote: “There is little here to suggest that Mr. Giswain would have acted as he did on 6 January, Would have done just that. A far, far less crowded crowd than he found himself while in DC in January.”

Also set to face trial in February is another alleged rioter, Guy Refitt of Texas, who spoke of lawmakers “pulling the capitol out of their ankles,” to a group of rioters to confront police. Capitals led the steps and retreated only after being peppered. According to prosecutors, spraying on the face.

Both M/s Giswain and Refit have challenged the use of barrier fee by the Government against them. In Mr Refit’s case, US District Judge Dabney Frederick said earlier this month that she would postpone until a ruling on that question. “Because it is not clear, based on the indictment alone, what actions Refit allegedly took to obstruct and obstruct official proceedings, the court cannot determine at this early stage of the proceedings that the allegation is unconstitutional. are unclear as to what was applied to it,” she said. wrote.

Mr Refit was reportedly in front of the first group of rioters to challenge a police line around the Capitol building and was carrying a shotgun, but ultimately did not enter the building. After returning home, prosecutors have said, Mr Refitt predicted future political violence and told his children they would be traitors if they reported it to law enforcement – something his son had already done. .

Mr Refit’s daughter testified during his custodial hearing that while she felt his comments had crossed a threshold, she was not overly concerned to hear them. “She’s a drama queen,” she said.

Write Aruna Vishwanath at [email protected]

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