Legal threats

There’s a growing number of legal threats to DOJ’s Jan. 6 cases

Here’s POLITICO’s look at the legal and political landmines that could blow up accountability for the riot at the Capitol.

By Kyle Cheney

For nearly four years, federal prosecutors have tracked, charged and imprisoned hundreds of Donald Trump supporters who stormed the Capitol on Jan. 6, 2021.

But what once seemed to be a shock-and-awe campaign of prosecutorial force — one the department has regularly characterized as the largest and most complex investigation in history — appears increasingly squeezed by legal challenges and political threats.

Ongoing court battles threaten to erase or undermine some of the 1,500 cases that have been brought against participants in the riot. And prosecutors’ tactical choices are the subject of new scrutiny from appeals courts. Those disputes could wind up in another high-stakes confrontation before the Supreme Court.

The high court has already gutted the key felony charge that prosecutors have used in hundreds of Jan. 6 cases, leading the Justice Department to drop a slew of its most serious criminal counts. And a federal appeals court rejected another tactic prosecutors had used to drive up sentences for Jan. 6 defendants, forcing judges to recalculate prison time in some cases.

Above all, Trump’s promise to pardon the rioters — even those who assaulted police — looms. His own criminal case for seeking to subvert the 2020 election is teetering and would collapse if he retakes the White House.

In other words, the legacy of accountability for the insurrection that threatened the 2020 transfer of power remains in limbo. Here’s a look at the Justice Department’s ongoing challenges:

Location data used to identify rioters could be thrown out

Prosecutors have relied on a controversial, modern location-tracking tool to net elusive Jan. 6 suspects who were at the Capitol during the riot. So called geofence warrants require telecom providers like Google to identify subscribers whose devices were present in specific locations at specific times.

Prosecutors obtained a geofence warrant in January 2021 for the Capitol building from 2 p.m. to 6:30 p.m. on Jan. 6, reasoning that virtually anyone inside — other than credentialed staff, journalists and members of Congress — were likely breaking trespassing laws. Prosecutors have used the data from the geofence warrant to pinpoint suspects and initiate new cases, particularly in recent months as the universe of cases initiated by tipsters and security camera footage has dwindled.

There isn’t much legal precedent for geofence warrants, an emerging tactic in the smartphone era. But the Fifth U.S. Circuit Court of Appeals recently ruled that geofence warrants are inherently unconstitutional, though it upheld the government’s use of one under a legal doctrine known as the “good faith exception.” Whether that exception would apply to Jan. 6 cases is unclear. The Fifth Circuit’s decision, which conflicts with a similar one issued by the Fourth U.S. Circuit Court of Appeals, could wind its way to the Supreme Court. An adverse ruling by the high court, of course, could jeopardize the basis for a growing list of Jan. 6 cases.

Two federal judges in Washington, D.C. rebuffed challenges to prosecutors’ use of geofence warrants in Jan. 6 cases. In an exhaustive analysis, U.S. District Judge Rudolph Contreras noted that prosecutors took painstaking steps to whittle down its list of devices in the target area from 5,723 to 1,535 suspect devices. Contreras, an Obama appointee, also noted that issues with other geofence warrants — like the potential for false positives such as innocent passersby and people at local businesses — were greatly reduced on Jan. 6 because stores and streets were closed.

“January 6 was a unique event in a geographically unusual place,” Contreras wrote. “Because the Capitol building was not open to the public on January 6 due to the counting of the votes of the Electoral College, the fact of having entered the building during the geofence timeframe itself constitutes evidence of a crime.”

A central charge used to prosecute rioters might not hold up

More than 1,400 Jan. 6 defendants have been charged with “entering and remaining in a restricted building,” making it the most common charge. It’s typically the first of four staple charges leveled against misdemeanor defendants and one that has undergirded hundreds of guilty pleas in low-level riot cases.

Yet, nearly four years after the attack, the courts are only now confronting whether the legal theory at the heart of those charges was flawed. The law is meant to punish people who break into a Secret Service-protected zone while a protectee is either present or expected to arrive. On Jan. 6, that list included then-Vice President Mike Pence and his family, as well as Vice President-elect Kamala Harris.

Recently, however, a handful of federal judges in Washington, D.C., appointed by both Democratic and Republican presidents, have invalidated the charge in some Jan. 6 cases. They say the law wasn’t intended to punish people who simply walked across the restricted boundary; rather, those facing the charge must also have been specifically aware that a Secret Service protectee was present or expected to be present. That is a significantly higher standard than prosecutors had relied on in making the charge the centerpiece of its Jan. 6 prosecutions.

A crucial appeal of the way prosecutors have deployed the charge is now pending in the case of Jan. 6 defendant Couy Griffin, who was convicted of the misdemeanor offense in 2022. A three-judge panel heard arguments in December, and a ruling is expected imminently.

Several district judges have put their Jan. 6 misdemeanor cases on hold awaiting the appeals court ruling.

It’s unlikely that the case will let many of these rioters totally off the hook for their conduct. The other three staple misdemeanor charges have so far survived legal challenges, and many of the people who pleaded guilty to the “entering and remaining” charges have already served their sentences or waived their ability to appeal. The greatest impact could be in the handling of hundreds of ongoing cases — and hundreds that have yet to be brought.

DOJ testing Supreme Court limits on a key Jan. 6 charge

The Supreme Court’s narrowing of a key federal obstruction law has already forced prosecutors to retreat from many of their most serious Jan. 6 cases, releasing some felony inmates early and dropping charges against others.

But the Justice Department hasn’t given up altogether. Prosecutors say that even under the narrower version of the law, they can prove that many Jan. 6 defendants attempted to obstruct Congress’ meeting that day by preventing lawmakers from accessing Electoral College ballots they needed to certify the 2020 election. In those cases, the Justice Department argues, they can still bring obstruction charges against Jan. 6 defendants, and they’ve signaled plans to do so in at least three pending trials.

“The evidence in this case meets the standard established by the Supreme Court,” prosecutors wrote in the case of Stephanie Baez, who is facing obstruction charges in addition to a handful of misdemeanors.

Prosecutors are hanging their strategy on the concurring opinion offered by Justice Ketanji Brown Jackson. Though she backed the court’s wider effort to shrink the scope of the obstruction law, she said the Justice Department might still be able to support cases against Jan. 6 defendants if prosecutors can prove that the defendants actually sought to prevent Congress from accessing physical Electoral College ballots.

That theory, however, will almost surely be challenged anew and lead to further appellate litigation.

Trump could unravel it all

Of course, the most significant threat to the legacy of the Justice Department’s Jan. 6 crackdown is the man at the center of it all.

Trump has pledged to pardon many of the members of the Jan. 6 mob, even those who committed violence against police, claiming they were unfairly targeted for their political views.

Trump considered issuing a blanket pardon for all rioters in 2021 but opted against it before leaving office. Since then, however, Trump has, at least vocally, taken up the cause of the participants. He’s called them patriots, recorded a version of the national anthem with some of the most notoriously violent participants and downplayed their actions.

If Trump retakes the White House in November and follows through on his pardon pledge, he could erase large swaths of prosecutors’ four-year effort in one swoop. Similarly, his return to power would likely result in the unraveling of the two criminal cases he faces for seeking to subvert the election.