DC Circuit Hears Last Jan. 6 Appeal Before Trump Takes Office

A Washington federal appeals court heard its final argument in an appeal by a Jan. 6 Capitol rioter before President-elect Donald Trump’s inauguration.

The three-judge panel for the US Court of Appeals for the D.C. Circuit on Monday appeared likely to uphold convictions for an Ohio man facing nearly five years in prison for assaulting or resisting officers at the riot during the certification of the 2020 presidential election.

Kenneth Thomas, also known as “Pi Anon” online, argued his appeal ahead of Trump’s swearing-in on Jan. 20. Trump, whose claims of election fraud helped spur the Capitol riot four years ago by his supporters, has pledged to pardon them. It’s unclear how far-reaching any pardons might be, but Vice President-elect JD Vance said on Sunday those who engaged in violence shouldn’t qualify.

Roger Roots, Thomas’ attorney, told the appeals court panel that his client received a trial “in name only” because it was “so lopsided” with rulings “so favoring the prosecution.”

Roots also took issue with a decision at trial by US District Judge Dabney Friedrich to not issue a missing witness instruction for the officers Thomas was convicted of assaulting. The officers didn’t testify, and this instruction would indicate to the jury that their testimony would’ve been unfavorable to the prosecution.

“In this circuit, the missing witness doctrine is dead right now,” Roots said. “If ever there were a case to revive the missing witness doctrine, it’s this case.”

However, Judge Robert Wilkins noted he’d tried cases when victims hadn’t testified and missing witness instructions weren’t issued.

The judges also questioned Thomas’ argument that his actions didn’t rise to the level of assault as required by the criminal statute. Thomas’ lawyers described his actions in its brief as “momentarily bumping against police armaments.”

Wilkins noted that Thomas was captured on video yelling “Hold the line” to other rioters at the Capitol.

“A reasonable juror couldn’t find that that’s force?” Wilkins asked.

And Judge Gregory Katsas said while he is “not necessarily persuaded” that all of the counts against Thomas involved assault, the statute under which he was convicted “is not limited to assault,” and also includes resisting and interfering with federal officers.

Peter Andrews, the Justice Department’s lawyer, said Thomas had a fair trial and used “some quantum of force” in each interaction with the police, meaning he met the requirement under the assault law.

The prospect of a potential pardon by Trump wasn’t raised at the argument. Judge Harry Edwards also sat on the panel.

Thomas is one of more than 1,200 people who were prosecuted in Washington federal court for their conduct in or around the US Capitol on Jan. 6, 2021, when a mob stormed the building following Trump’s public remarks and evidenceless claims that the 2020 election he lost was stolen.

The prosecutions, part of a sprawling federal investigation, created a caseload for the Washington trial court that its chief judge has called “completely unprecedented.”

According to prosecutors, Thomas shoved police with his hands and told fellow rioters to “hold the line” as they locked arms and pushed against the police barricade guarding the Capitol.

The case is USA v. Thomas, D.C. Cir., No. 23-03227, argued 1/13/25