Justice Department signals plan to salvage obstruction charges in some Jan. 6 cases

The Justice Department said Wednesday it plans to press ahead with obstruction charges against two Jan. 6 defendants despite the Supreme Court’s recent ruling that limited the scope of a federal statute that makes it a felony to obstruct many government proceedings.

Prosecutors contended they can still prove that the two defendants, a married couple from Ohio, are guilty of obstructing Congress even under the high court’s narrow interpretation of the law. The defendants, Don and Shawndale Chilcoat, are accused of surging with the mob onto the Senate floor during the riot at the Capitol.

The Justice Department’s announcement in the Chilcoats’ case appears to be the first time since the Supreme Court’s June 28 ruling that prosecutors have signaled their intention to proceed with obstruction charges in any cases stemming from the Capitol riot.

Over the past seven weeks, the Justice Department has abandoned the obstruction charge in a slew of cases, citing the uncertainty caused by the Supreme Court. Prosecutors also have refrained from pursuing the charge in new cases. That has blunted an important cudgel for prosecutors: The obstruction charge carries a 20-year maximum sentence and has often been used to coax defendants into plea deals. The charge has also been used by the department to distinguish between those who simply paraded around the Capitol and those who broke in with a provable intent to interfere with Congress.

Before the Supreme Court weighed in, the Justice Department had charged more than 300 Jan. 6 defendants with “obstruction of an official proceeding” for their alleged roles in seeking to prevent Congress from certifying the results of the 2020 election. The charge was often the most serious that Jan. 6 defendants faced.

But in a 6-3 opinion that scrambled the justices’ usual ideological alignment, the Supreme Court ruled that the 20-year-old obstruction statute, passed in the aftermath of the Enron financial scandal, can apply only to defendants who took steps to impair physical evidence, like shredding documents or concealing them from investigators. The high court’s interpretation reversed lower-court rulings and roiled dozens of ongoing prosecutions stemming from the riot, particularly in cases where defendants faced no other felony charges.

In addition, federal judges released from prison a slew of defendants convicted of obstruction while they await further legal arguments about the future of their cases.

In other Jan. 6 cases, particularly those involving defendants who scuffled with or impeded police, prosecutors have turned to a civil disorder charge in lieu of the obstruction count. That charge is also a felony but carries only a five-year maximum sentence.

Among the cases potentially affected by the Supreme Court ruling is special counsel Jack Smith’s prosecution of former president Donald Trump for allegedly conspiring to overturn the 2020 election results. Two of the four felony counts against Trump in that case stem from the obstruction law.

Smith signaled earlier this year that he believed he could prove that Trump committed obstruction even under the narrow interpretation the high court ultimately adopted. The case is currently in limbo as the special counsel, Trump’s lawyers and the trial judge grapple with how it should proceed in light of a separate Supreme Court decision on presidential immunity.

A DOJ spokesperson had no immediate comment on how the department is handling the obstruction issue in Jan. 6 cases.

Still, Wednesday’s filing in the case against the Chilcoats confirms that prosecutors believe they have found ways to revive or sustain the obstruction charges in some cases. They say the evidence suggests the Chilcoats both knew that their incursion onto the Senate floor in the Capitol would prevent Congress from meeting on Jan. 6 to tally electoral vote certificates — the very physical evidence they say the obstruction law was meant to cover.

Shawndale Chilcoat told a friend on Jan. 4, 2021 that she had “just” phoned then-Sen. Rob Portman’s office to complain about his decision to support the certification of Joe Biden’s victory, prosecutors noted, and the next day complained on Facebook that then-Vice President Mike Pence had not agreed to block Biden’s victory as well. And after the riot, she said: “[W]e were just trying to stop them from certifying the votes and didn’t know they were already gone.”

“From this evidence, the jury certainly will be able to infer that Shawndale Chilcoat attempted to impair the availability of the electoral college votes which Congress was to consider,” Assistant U.S. Attorney Michael Romano wrote. “The jury can also infer, based on the defendants’ joint conduct and their relationship, that Donald Chilcoat did, too.”

DOJ’s position in the Chilcoat case, which is pending before Clinton-appointed Judge Colleen Kollar-Kotelly, mirrors the concurring opinion authored by Justice Ketanji Brown Jackson in the Supreme Court’s obstruction ruling. Jackson’s opinion noted that despite the narrowing of the obstruction law, the Justice Department may be able to sustain many cases against Jan. 6 defendants if prosecutors can prove defendants knew their actions would block Congress’ ability to access and count electoral votes in its Jan. 6 proceeding.

“That issue remains available for the lower courts to determine,” wrote Jackson, an appointee of Biden.