Appeals court ruling means over 100 Jan. 6 rioters may be resentenced
Supporters of former President Donald Trump stand outside the U.S. Capitol on Wednesday, Jan. 6, 2021, in Washington. (AP Photo/Jose Luis Magana)
A federal appeals court on Friday overturned a sentencing enhancement used against Jan. 6 defendants charged with felony obstruction, a decision that means that over 100 convicted rioters may have to be resentenced.
The decision came from the U.S. Court of Appeals for the D.C. Circuit on Friday when it upheld the felony conviction of a Jan. 6 defendant who stormed the U.S. Capitol, reaffirming a charge also lodged against former President Donald Trump that will soon be debated by the Supreme Court.
It’s not clear what benefit retired Air Force lieutenant colonel Larry R. Brock Jr. or any other Jan. 6 defendant will receive because of the ruling. Enhancements raise the range of suggested sentences judges must consider. D.C. judges usually sentence below those guidelines, and regularly make clear that their punishments would be the same without the enhancement.
The ruling could have an impact in plea negotiations, eliminating one bargaining chip used by prosecutors when encouraging defendants to plead guilty without a trial.
If the Supreme Court reverses or pares back the use of the obstruction charge, all of those cases would have to be reconsidered anew. This sentencing guidelines dispute is not as disruptive, but it adds to workload of prosecutors and the courts as they work their way through the latter half of 1,300 charged cases, three years after the rioting.
Brock—who gained notoriety after he was photographed in the Senate Chamber in an army green helmet and vest—was sentenced to two years in prison for obstructing Congress; he is currently scheduled to be released in December.
Obstruction of Congress is one of the four felony charges Trump faces in D.C. federal court; he is also accused of conspiring to commit that crime.
The appellate court had already ruled that “obstructing an official proceeding” does not apply only to destroying evidence, as many Jan. 6 defendants have claimed. Even though the crime was created in response to attempts to cover up a financial scandal, the court said, stopping Congress from certifying a presidential election also qualifies. That ruling will be reviewed by the U.S. Supreme Court on April 16. But judges have disagreed on one element of the crime—what it means to act “corruptly.”
Like Trump, Brock did not commit any violence on Jan. 6. And like Trump, he argued that he earnestly believed that the election was stolen.
“Mr. Brock thought he was acting righteously, patriotically and with a eminently proper purpose,” attorney Charles Burnham said at oral argument in September.
The judges, all Democratic appointees, said Brock did not have to act violently or know Trump lost to understand that what he was doing was wrong; it was enough to know what he was doing was illegal and could involve violence.
“Brock participated in a riot that sought to overturn the 2020 presidential election by force, and that he was himself prepared to take violent action to achieve that goal,” the judges wrote. Relying on his pre-riot social media posts, they said, “Where a defendant announces his intent to use violence to obstruct a congressional proceeding, comes equipped for violence, and then actually obstructs that proceeding, the evidence supports a finding that he acted with an impermissible purpose or knowledge of the wrongfulness of his actions.”
The Washington Post obtained hours of video footage, some exclusively, and placed it within a digital 3-D model of the building to map the rioters’ movements and assess the peril that lawmakers faced.
However, they agreed with Brock that he should not have been penalized for “substantial interference with the administration of justice,” saying that sentencing enhancement is about thwarting the legal process in some way, not the crimes committed at the Capitol. Brock will now be resentenced, although that does not mean he will receive any reduction in punishment.
In its ruling, the D.C. Circuit panel said that even if the Supreme Court rules that the law requires destruction of evidence, it could still apply to rioters because “participation in the January 6th riot caused Congress to adjourn [an] evidentiary process”—the confirmation of votes from the 2020 election.
The Supreme Court’s decision on the obstruction charge could not only impact hundreds of Jan. 6 cases, but also one of four criminal trials Trump faces as he is also the GOP front-runner for president. Trump is accused of obstructing the congressional proceeding on Jan. 6, with prosecutors pointing to his actions directing the mob to the Capitol, pushing for “fake electors” to be counted, and pressing Vice President Mike Pence to recognize those fake electors as legitimate. Trump’s attorneys have argued that, like Brock, the former president thought the 2020 election was stolen and so had no criminal intent.
Prosecutors with the office of special counsel Jack Smith have highlighted multiple instances in which Trump was told he lost and appeared to acknowledge that fact. At oral argument in one of the earlier obstruction challenges at the circuit, a defense attorney suggested that while his client was honest in his beliefs, Trump probably wasn’t.
But at oral argument in Brock’s case, multiple judges emphasized that a defendant can believe they are morally right and still know their actions are illegal.
“Let’s say that someone has been in an election for a state judge. And the candidate thinks that she won, but she’s not being recognized as the winner,” Judge Cornelia Pillard said. “Does that privilege her to rally a mob, to go and interfere with an investiture of the court, to break into the courthouse, because she has a sincere belief that she’s been wronged?”
When Burnham noted that the same could be true of civil rights protesters, Pillard said that “the power of civil disobedience” was the willingness to be punished.
Such protesters think, “I’m violating the law and I’m ready to take the consequences for it because I’m responding to a higher law,” she said. “And the higher law, in my view, is more important, even to the point where I’m willing to sacrifice myself. But … the sacrifice is that the law does not bend and accommodate the person’s individual moral principle.”
In Brock’s case, he advocated for “insurrection” on social media in advance of Jan. 6, saying “the battle isn’t winnable democratically.” His “plan of attack” was to “seize” government officials who opposed Trump, then “begin interrogations using measures we used on al-Qaida.” He advised, “Do not kill law enforcement officers unless necessary,” and anticipated a “pardon for all crimes up to and including murder.”
The “obstruction of an official proceeding” law was passed in 2002 to close a loophole uncovered by the Enron scandal; accountants for the telecom firm could be prosecuted for “corruptly persuading” others to destroy evidence but not for their own document shredding. The crime carries up to 20 years in prison, and penalizes anyone who “corruptly … alters, destroys, mutilates, or conceals a record … for use in an official proceeding; or “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”
The case that inspired the felony charge did not survive judicial review. In 2005, the U.S. Supreme Court overturned the guilty verdict against accounting firm Arthur Andersen, saying jurors were not properly informed that corrupt persuasion must involve “consciousness of wrongdoing.”
Multiple Jan. 6 defendants argue that even if the obstruction charge covers storming the Capitol, their actions were not “corrupt” because they did not believe they were doing anything wrong. Pillard and the other judges acknowledged that there was disagreement over that part of the law and the line between misdemeanor demonstrating illegally and felony obstruction.
“What I’m wrestling with is … what this ‘corruptly’ word means and how it can be met,” Judge Patricia Millet said at oral argument. “I’m at least struggling to discover, to make sure that we have a concrete understanding of what that ‘corruptly’ standard is.”
Assistant U.S. Attorney Eric Hansford replied that a brief public protest in a congressional hearing, for example, would not rise to the level of obstructing the proceeding and so corrupt intent would not be an issue. The government has charged most people who merely entered the Capitol and wandered around with misdemeanor crimes, reserving the felony charge for aggravating conduct such as making it to sensitive areas of the building, fighting police or rallying others to block the vote count.
In the earlier case that the Supreme Court will now weigh, Judge Florence Y. Pan said that any number of definitions of corruption could apply to the Jan. 6 cases, while Judge Justin Walker contended that corruption requires seeking “an unlawful benefit.” That benefit, he said, could be helping Trump remain in power.
At oral argument in Brock’s case, Burnham said that that didn’t apply because the veteran thought he was doing “a public service” by helping expose fraud.
“The benefit is not because we want Donald Trump to be happy,” he said. “The benefit is for the country.”
