Several January 6 rioters have won early release from their sentences ahead of a key supreme court review of the legality of a specific federal charge against them – a review that could, in turn, see them ordered to return to prison.
A decision on the legal issue, which revolves around how January 6 prosecutors distinguished between conduct qualifying as “obstructing an official proceeding” of Congress and misdemeanor offenses, including shouting to interrupt a congressional hearing, is not expected until the summer, according to the Washington Post.
The decision could affect convictions and sentences passed on more than 350 January 6 defendants if the supreme court decides that prosecutors misused criminal statutes to obtain the convictions.
Three men have already been granted early releases, according to the Post.
They include a Delaware man who carried a Confederate flag into the Capitol and was released one year into a three-year term; a Ohio man who broke through police lines to become one of the first rioters to enter the building, released six months into a 19-month sentence; and a man who entered the Senate chamber draped in a Trump flag, who was freed after serving five months of a 14-month sentence.
The law that prosecutors used to charge the men was passed after the collapse of the energy trading firm Enron in 2001 and crafted to limit accounting corruption. But the charge was used to prosecute some January 6 rioters in place of charging sedition or insurrection violations.
The legality of using the obstruction charge has mostly been upheld by January 6 trial judges, but two judges, one Trump-appointed, have argued that it applies only to tampering or destruction of evidence.
In 2021, one of those federal judges, Randolph Moss, said the government could face a “constitutional vagueness problem” if it could not articulate to the courts how the charge distinguished between obstruction of Congress and ordinary trespassing.
If the supreme court decides the obstruction charge was not suitable for the January 6 rioters, the decision could also affect the election interference case against Donald Trump.
Retired US district judge Thomas F Hogan, who passed sentence on 26 January 6 defendants, told Georgetown law school students earlier this year that if the supreme court rejects the use of the law it “would have a devastating effect on the prosecution side” of January 6 prosecutions that did not involve violence.
Among those who could see their convictions overturned by the supreme court is Jacob Chansley, known as the “QAnon shaman” with a horned headdress, who was charged under the law. Others include members of the far-right Oath Keepers and Proud Boys extremist groups.
Prosecutors have urged judges to delay releasing the men charged only under the contested obstruction law pending the supreme court appeal, arguing in one case that doing so into another presidential election “would be releasing defendant into the same political maelstrom that led him to commit his crimes in the first place”.
