Wearing their group’s signature orange hats, members of the Proud Boys gather near the U.S. Capitol on Jan. 6, 2021. (Amanda Andrade-Rhoades for The Washington Post)
Federal prosecutors have begun moving to drop charges accusing Jan. 6 defendants of obstructing Congress’s confirmation of the 2020 presidential election results, offering new plea deals after the Supreme Court last month restricted the government’s use of that count, according to court filings.
Some beneficiaries include members of the extremist Oath Keepers and Proud Boys who are not accused of other felony offenses, but whose leaders were convicted of conspiring to use force to oppose the peaceful transfer of presidential power from Donald Trump to Joe Biden. Those whose charges may be dropped are among a small core group of Capitol riot defendants who prosecutors alleged understood why Congress was meeting and who came not to protest but to block lawmakers from acting.
One such defendant is Arthur Jackman, a Proud Boys member from Florida who was photographed with leaders of the group convicted of seditious conspiracy for helping instigate the Jan. 6, 2021, Capitol attack. Jackman, however, was not charged as a plotter and has been offered a deal to plead guilty to one or more pending misdemeanor offenses such as trespassing or disorderly conduct, according to court filings Monday.
Other Proud Boys associates among Jackman’s co-defendants could face trial or admit to other pending felony counts such as rioting, destruction of property or assaulting police, prosecutors said in their filings.
Separately last week, Kellye SoRelle, an attorney for the Oath Keepers and a former girlfriend of its leader, Stewart Rhodes, agreed to plead guilty next month to what are expected to be charges excluding the obstruction count, based on filings by the government and her defense.
Defense attorneys for Jackman and SoRelle and a spokeswoman for the U.S. attorney’s office declined to comment.
Prosecutors are responding to the Supreme Court’s June 28 decision that the Justice Department cannot broadly apply a federal statute that makes it a crime to corruptly obstruct or impede an official proceeding to Congress’s election certification session. The court ruled that the law applied only to impairing or destroying evidence such as records or documents.
As many as 259 Jan. 6 defendants who were convicted or awaiting trial on the count may seek to vacate their convictions, sentences or plea deals, although most of them might not benefit much because they are convicted of other felonies. In a statement, the Justice Department said only 57 of about 133 people have been convicted and sentenced on that charge and no other felony, of whom are 17 still behind bars who could benefit from a reduced sentence. That is less than 2% of more than 1,400 charges Jan. 6 cases.
However, about another 126 defendants await trial or sentencing on the obstruction count — including a sizable minority who face no other felony counts, according to Justice Department data. They include otherwise nonviolent individuals who came to the Capitol with groups whose leaders notoriously planned for violence, or who are accused of more egregious conduct — such as occupying the Senate chamber, raiding lawmakers’ offices and desks, or targeting government officials. Nearly all 126 pending defendants are on pretrial release, except for some who are charged with other felonies, serving time in other criminal matters, or held for violating bond.
Prosecutors in the early days after the Capitol riot searched for a charge that would fit in the gap between protest-related civil disobedience that rarely results in prison time and politically charged crimes such as sedition. Storming the Capitol to force the evacuation of lawmakers who were meeting to finalize the election results was more severe than a misdemeanor, they reasoned, likening the offense to raiding a courthouse and forcing a judge and jury to flee.
But a 6-3 high court majority said in the case of Jan. 6 defendant Joseph W. Fischer that when the government charges a person with a crime, their alleged acts have to fit the exact text of a statute on the books, or else Congress has to pass a new law.
Since the ruling, U.S. prosecutors have pushed back deadlines in related Capitol breach cases by weeks or months to sort through their options. Conceivably for defendants who seek to back out of plea deals, prosecutors could threaten to bring new counts or revive dropped ones. They could argue for judges to stick by sentences based on defendants overall conduct, even if the obstruction count itself is dropped. And they could test how lower courts respond to arguments that some Jan. 6 defendants in fact attempted to impair the availability or integrity of evidence for use in the election certification, such as ballot slips.
On the other hand, many defendants might benefit from greater leverage in plea talks or a lower sentence. Some of those ordered released early from prison sentences pending appeal ahead of the Supreme Court’s decision include Kevin Seefried, a Delaware man who carried a Confederate flag into the Capitol; Alexander Sheppard, of Ohio, who overran police lines and became one of the first rioters to enter the Capitol; and Thomas B. Adams Jr., of Illinois, who entered the just-evacuated Senate chamber wearing a Trump flag as a cape. Each was freed after serving about one-third of their respective three-year, 19-month and 14-month sentences, and none was convicted of any other felony.
But Christian Secor, who led a campus group at UCLA with white-supremacist ties and sat in Vice President Mike Pence’s chair in the Senate on Jan. 6, lost a recent bid to cut a year off his 42-month sentence. U.S. District Judge Trevor N. McFadden found Friday that Secord did not qualify for a lower sentence under a new first-offender guideline, and waived his right to challenge his obstruction conviction when he pleaded to that sole count in a deal dropping other charges.
Defense attorneys have been ready to file motions on behalf of similarly situated clients, but so far, they and most judges have agreed to wait for the government to show its cards. But U.S. District Judge Timothy J. Kelly set a Monday deadline for the U.S. attorney’s office for D.C. to say if and how they intend to proceed with the case of Jackman and four co-defendants as a Sept. 9 trial date nears for the men. Both Kelly and McFadden were appointed by Trump.
Jackman, a Proud Boys member since 2016 who is married to a Florida sheriff’s deputy, was seen in several videos and photographs in and around the Capitol with Proud Boys organizer Joe Biggs. He told the FBI he came to Washington “to support President Trump and to stop the steal,” but not to invade the Capitol.
Jackman’s co-defendants include Paul Rae, a Florida Proud Boys member who was also photographed with Biggs, and Nathaniel Tuck, a former Florida police officer who reportedly applied to be a member. Tuck was charged with his father, Kevin Tuck, an officer who resigned from the Windemere, Fla., police department the day he was arrested. Each of the men and a fifth co-defendant, Edward George Jr. of North Carolina, have pleaded not guilty.
In a court filing, Assistant U.S. Attorney Alexis J. Loeb wrote that the government opposed the defendants’ request to postpone trial and notified them last week that the obstruction charge would be dropped to avoid delays. Plea offers were also extended to other defendants, Loeb said.
Tuck attorney William L. Shipley Jr. said he has another defendant facing trial on Sept. 4 where prosecutors have not said what they would do.
“What I think you are seeing is a recognition that the initial ideas floated about impairing the actual electoral votes [...] doesn’t really lend itself to proof without some expressions by the defendant in advance of Jan 6 suggesting that was a goal they had in mind ahead of the riot starting,” said Shipley, who represents many Jan. 6 defendants. “The cases you are seeing dismissed reflect a clear lack of anything in the discovery that they could use to make such a theory plausible — the Tucks being an example,” Shipley said, of what he expected to be true “in 99% of these cases.”
Some defense attorneys expect scores of sentences to be reargued through at least 2024, regardless of how many prevail, starting with people who are locked up, before looking at whether convictions should be vacated. New cases can be charged until the statute of limitations runs out in January 2026, five years after the breach, although if Trump is reelected, he has said he would end the prosecutions and issue pardons.
