Supreme Court Case Risks Upending Busy Trial Venue’s Jan. 6 Work

A US Supreme Court case over a criminal law used in Capitol riot prosecutions could upend hundreds of criminal cases and worsen an already swollen caseload at the Washington federal trial court handling them all.

The high court will hear argument April 16 in a case brought by a former Boston police officer who participated in the Capitol breach on Jan. 6, 2021, during the certification of the presidential election. Joseph Fischer argues prosecutors overreached in using a criminal statute that prohibits obstructing an official proceeding.

A ruling in Fischer’s favor could open the door to a flurry of requests by other Jan. 6 defendants convicted under that law to revive their cases. This could strain an already busy DC federal trial court handling more than 1,000 Jan. 6 criminal cases and the judges and lawyers who work there.

Chief Judge James Boasberg of the US District Court for the District of Columbia described the Jan. 6 caseload as “completely unprecedented.”

“I don’t think there’s been anything like it, certainly not here,” Boasberg said.

Strained Resources

Attorney General Merrick Garland has described the Jan. 6 probe as one of the “largest, most complex, and most resource-intensive investigations.” It has resulted in more than 1,320 charges as of late February and more than 890 convictions.

Three years later, new cases continue to stream in at a rate of more than 30 a month between November and February, according to data provided by the US Attorney’s Office for the District of Columbia.

The continued influx of Jan. 6 cases has “hugely increased our criminal caseload,” with the most significant impact on trials, Boasberg said.

Before the Capitol riot, carried out by supporters of Donald Trump after his election loss to Joe Biden, Boasberg said he’d typically handle an average of four trials per year. Since then, he said he has had as many as nine or 10 trials annually.

The trials “have understandably placed a strain on the court’s resources,” Boasberg said, resulting in strain on courtroom clerks, court reporters and other staff. It has also pushed back civil trials and the handling of motions in civil cases, he said.

The DC public defender’s office also feels the crunch. “It has overwhelmed our office,” said AJ Kramer, DC’s public defender.

Kramer described a “perfect storm” of Jan. 6 cases that he said has coincided with an increase in matters involving local crimes. Jan.6 cases are also “incredibly resource intensive” because of the thousands of hours of video to sort through, he said.

In what Kramer said was a first for his office, other federal defender offices from around the country—as far as Alaska—have sent lawyers to DC to help with Capitol riot cases.

Jamie McGrady, federal defender for the District of Alaska, said by email her office has volunteered to take some Jan. 6 cases, including 11 felonies. That requires resource-intensive in-person visits to clients to review evidence and discuss options for trial. None of the defendants have been from Alaska, she said.

“It would be impossible for a single FD office to absorb these costs alone, when our budgets are already strained,” McGrady said.

Fischer Outcome

Fischer is challenging prosecutors’ decision to charge him under part of a statute that prohibits interfering with a congressional investigation. The contested statute was passed after the Enron Corp. scandal of the early 2000s. It penalizes anyone found to have destroyed evidence needed in an official proceeding, or who “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” It carries a prison sentence of up to 20 years.

Fischer argues that prosecutors’ decision to separate the second part of that statute to include non-evidence related offenses amounts to “prosecutorial overreach.” The government counters the statute’s second part is meant to act as a “catchall offense” to cover all forms of obstructing an official proceeding.

A Supreme Court decision is due by the end of June. Attorneys said any ruling that changes how prosecutors can charge under the contested obstruction law would likely lead to attempts to reopen Jan. 6 cases, with defendants seeking to be re-sentenced or even retried. How many cases get reopened would depend on the contours of a Supreme Court ruling.

“If there’s any crack in the door, most attorneys will advocate for their clients and try to make sure that they took advantage of what they could. So if there is any sort of ruling that would be anything besides a slam dunk for the government, it will probably lead to motions that would need to be decided by a court,” said Dwight Draughon, a partner at Steptoe and a former federal prosecutor.

A decision limiting the government’s authority to charge the contested statute could also curtail Jan. 6 prosecutions moving forward.

As of late February, 347 defendants had been charged under the statute at issue, according to the DC US Attorney’s Office. Notably, that includes former President Donald Trump in his election interference case brought by Special Counsel Jack Smith.

“This has been one of the most widely used statutes in the January 6 prosecutions,” said Rebekah Donaleski, a partner at Cooley and a former federal prosecutor. “It’s a significant tool for prosecutors. Having it off the table would be a significant loss.”

Jan. 6 defendants facing charges under the contested statute have already begun requesting to postpone their proceedings, and some cases involving the contested statute before the DC federal trial court and DC Circuit have been paused pending the outcome of the high court case.

Those pauses may alleviate the burden on the court in the short-term, but could create scheduling challenges later when reopened, said Gene Rossi of Carlton Fields, a former federal prosecutor who represented a Jan. 6 defendant.

“If you stay a case, you’re basically putting that in a freezer,” Rossi said. “It’s essentially taken off your docket. That does alleviate a court’s schedule.”

But once the Supreme Court issues a ruling in Fischer’s case, “you’re going to have to take them out of the freezer, and you’ve got a lot of cooking to do,” he said.