By Andrew Goudsward
WASHINGTON (Reuters) -A U.S. prosecutor said on Wednesday that the Justice Department would not seek to revive an obstruction charge against a former police officer charged in the U.S. Capitol riot who convinced the U.S. Supreme Court to raise the legal bar for that offense.
The high court's decision in the case of Joseph Fischer has implications for more than 250 prosecutions tied to the Jan. 6, 2021, Capitol attack, when supporters of Donald Trump breached the building in an attempt to stop lawmakers from certifying his 2020 election loss.
The court’s 6-3 ruling in June requires prosecutors to show that defendants charged with obstructing an official proceeding – the congressional certification of the election – "impaired the availability or integrity" of documents or other records, or attempted to do so.
Prosecutor Alexis Loeb told a federal judge that the government wanted to proceed to trial on the six remaining charges against Fischer. U.S. District Judge Carl Nichols tentatively scheduled a trial to begin in February 2025.
Fischer, who at the time of the riot was a police officer in North Cornwall, Pennsylvania, has pleaded not guilty to the remaining charges, which include assaulting police officers.
Nichols previously dismissed the obstruction charge against Fischer, triggering the appeal that wound up before the Supreme Court.
The Supreme Court decision in Fischer's case has triggered new legal battles over how to move forward with cases charged under a theory, now rejected by the high court, that the obstruction law covered more general attempts to halt the congressional session.
Federal prosecutors have dropped obstruction charges against more than 60 of the Jan. 6 defendants, but in at least three cases they have indicated they can clear the more stringent standard.
Trump faces two obstruction-related charges in a case accusing him of attempting to overturn the 2020 election and is expected to bring his own legal challenge based on the Fischer decision.
THREE OBSTRUCTION CASES
The three cases in which the U.S. government has sought to sustain obstruction charges involve defendants who allegedly made statements about the Electoral College vote or occupied the U.S. Senate chamber, where some are accused of rifling through papers on senators’ desks.
Prosecutors argued in an Aug. 21 court filing that husband and wife Donald and Shawndale Chilcoat were aware the congressional proceeding involved records, "specifically, the electoral votes that Congress was to consider.” A lawyer for the couple declined to comment.
Prosecutors separately said that another pair, Christopher Carnell and David Bowman, should be retried after having been found guilty of obstruction. They argued they could justify obstruction charges by pointing to the duo’s actions on the Senate floor, where Bowman allegedly photographed a letter signed by Senator Mitt Romney.
Defense lawyers for both argued in a court filing that the defendants did not tamper with the papers, which they maintained were not evidence in the congressional proceeding.
Prosecutors have said in court filings that they are conducting a “case-by-case” analysis of obstruction cases and are considering whether some defendants can still receive what they deem appropriate sentences based on crimes other than obstruction.
A spokesperson for the U.S. attorney’s office in Washington, which is leading Jan. 6 prosecutions, declined to comment.
Nick Smith, a defense attorney who has been involved in challenging the obstruction charges, said prosecutors’ attempts to move forward misinterpret the Supreme Court’s decision.
“It’s remarkable for the government to be going at this specific charge so persistently when the Supreme Court has told them ‘no,'” Smith said.
About 259 Capitol riot defendants were charged with obstructing the congressional proceeding at the time of the Supreme Court ruling out of nearly 1,500 cases charged, according to the U.S. attorney’s office in Washington.
About 133 defendants charged under the obstruction law have already been sentenced, and the impact of the Supreme Court decision on these has not yet been resolved. The rest are awaiting trial or sentencing.
(Reporting by Andrew Goudsward; Editing by Scott Malone, Cynthia Osterman and Jonathan Oatis)
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