Jan. 6 defendants plot new strategy to delay cases

Source: The Hill | January 6, 2024 | Zach Schonfeld and Ella Lee

At least two dozen Jan. 6 defendants are seeking to delay their cases until the Supreme Court decides whether an obstruction charge used to prosecute scores of rioters was legitimately applied by the Justice Department, court filings show. 

Some defendants are seeking pauses in their upcoming trials or sentencing hearings. Others already sentenced are hoping to be released from prison or punt their upcoming surrenders.

If successful, the requests could cause months-long delays and pose new challenges for prosecutors as the third anniversary of the Capitol attack passes.

The developments follow the Supreme Court’s announcement it will hear Fischer v. United States, a Jan. 6 defendant’s challenge to the obstruction statute that has allowed prosecutors to paint rioters’ actions as part of a bigger plot to stop the certification of the 2020 presidential election results.

The high court’s eventual ruling threatens to derail the cases of hundreds of Jan. 6 defendants charged under the statute – including former President Trump. 

But regardless of the outcome, prosecutors in the meantime now must confront the possibility that some defendants’ cases will be paused until the summer, as the Supreme Court’s decision is unlikely to land until May or June.

“The Supreme Court could say 1512(c) is unconstitutional,” said Gene Rossi, a former federal prosecutor who later served as a defense attorney for an Oath Keeper charged over Jan. 6. “You don’t want to have a trial – waste resources, witnesses, court time, jury’s time – and then later have the government lose and the court says, ‘You shouldn’t have tried that 1512. It’s a misapplication of the law.’

“Every judge, in my opinion, should pause and wait for the Supreme Court,” he added.

The Justice Department has insisted the prosecutions should still move ahead, noting how many of the defendants are charged with other crimes and asserting a strong public interest in the timely adjudication of the cases.

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