Nichols’s ruling could complicate the felony prosecutions of many of the roughly 275 Jan. 6 defendants facing the same pending count, with defense attorneys saying it could slow down plea negotiations or even eventually cause the government to recharge or retry cases.
The judge’s decision came right before significant developments showed the reach of his ruling if it’s upheld on appeal. On Tuesday authorities announced longtime Proud Boys leader Henry “Enrique” Tarrio was indicted with conspiracy to obstruct an official proceeding — accused of planning with other leaders of the extremist group in connection with Jan. 6. Hours after Tarrio’s indictment was made public, a jury convicted Guy Wesley Reffitt of obstruction of an official proceeding in the first Capitol breach trial.
Nichols’s ruling, in the case of Garret Miller, of Texas, is not binding on other judges and does not set precedent. But prosecutors could appeal it, hoping to settle the issue before hundreds of similar cases proceed. That could take months, at best, to resolve at the U.S. Court of Appeals for the D.C. Circuit. Or a defendant who has lost a similar motion could appeal when their case is concluded.
But if the government doesn’t appeal, continuing to prosecute obstruction cases creates the risk that convictions secured now will be undone by a future adverse ruling, forcing retrials. One defense lawyer familiar with Jan. 6 cases said colleagues are likely counseling clients not to plead guilty to a charge that may not be a crime. In that way, Nichols’s decision has given defendants more leverage in plea talks.
Miller’s lawyer, Clinton Broden of Dallas, said he expected prosecutors to appeal.
“The government obviously believed that the ends to be accomplished somehow justified charging him with a statute that was not applicable to his alleged conduct,” Broden said. “Judge Nichols correctly decided otherwise. This could result in a significant change as to how the government prosecutes the January 6 cases going forward.”
Barbara McQuade, a University of Michigan law professor and former U.S. attorney, said in an email the decision “throws a monkey wrench into DOJ’s efforts to hold accountable the people who attacked the Capitol on Jan 6.”
She noted that Nichols’s interpretation of obstructing an official proceeding “has already been rejected by seven other judges, and I would expect the higher courts to follow suit, but in the meantime, this decision will likely delay all cases where this offense has been charged or could have been charged, including against Donald Trump.”
At issue is an obstruction charge carrying some of the heaviest penalties leveled against nearly 300 defendants, including associates of the Oath Keepers, Proud Boys and Three Percenters, far-right groups that allegedly conspired and prepared for violence. The government has also brought the charge against scores of individuals not accused of attacking police or destroying property but facing some of the most egregious allegations — such as occupying the Senate chamber, sitting in the vice president’s chair and targeting government officials.
Prosecutors have sought to differentiate such acts from protest-related civil disobedience that rarely results in prison time and more politically charged offenses such as seditious conspiracy or the use of political violence against U.S. authorities to prevent Biden’s inauguration.
Defendants in well over a dozen cases assert that the joint House and Senate session that met Jan. 6, 2021, does not qualify as an official proceeding of Congress. They also argue that the law is unconstitutionally vague because it fails to put individuals clearly on notice as to how “corruptly” obstructing or influencing Congress differs from misdemeanor trespassing, parading or disorderly conduct in the Capitol. Defendants have also said that among what they say are defects in the law, it does not cover individuals’ alleged illegal actions.
Nichols wrote in a 29-page opinion that federal prosecutors erroneously interpreted a “catchall” provision Congress passed when it overhauled a long-standing obstruction-of-justice statute as part of the Sarbanes-Oxley corporate responsibility act in 2002. The law came in the wake of prosecutions of accountants and other officials involved in the Enron case, when a loophole was found in which those who shredded crucial documents were not committing a crime.
The provision covers “whoever corruptly alters, destroys, mutilates or conceals a record, document or other object…or otherwise obstructs, influences or impedes any official proceeding.” Prosecutors have been charging defendants under the second part of that law, accusing them of obstructing the official proceeding of Congress’ attempt to count the electoral college vote on Jan. 6, 2021.
Nichols ruled that the government could not use the second part alone, and that the court “requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.” Raiding the Capitol and forcing lawmakers to flee or wrongly trying to halt vote counting does not apply to that interpretation, the judge said.
Nichols dismissed 1 of 12 counts against Miller, who allegedly bragged about storming the Capitol and threatened lawmakers and police on social media. He is also charged with three felony counts of assaulting police and making interstate threats, accused of stating “Assassinate AOC” in response to a tweet by Rep. Alexandria Ocasio-Cortez (D-N.Y.) calling for President Donald Trump’s impeachment.
Nichols’s reasoning is likely to apply to the cases of at least seven other defendants who are before him on the same charge. One other, Beverly Hills spa owner Gina Bisignano, awaits sentencing after pleading guilty in a deal with prosecutors.
Of the roughly 733 defendants charged in federal court so far, 114 have pleaded guilty and been sentenced, but only 10 for felonies, according to Washington Post databases. Most convictions have been for misdemeanors related to trespassing. Only two of the 10 defendants convicted of felonies were sentenced for obstruction: “QAnon Shaman” Jacob Chansley, who is serving a 41-month prison sentence, and Paul Hodgkins, who is serving an eight-month sentence. Reffitt — who prosecutors said challenged the police at the head the mob determined to break into the Capitol — will be the third sentenced for obstruction.
Nichols was appointed to the bench in 2019 by Trump. He served in the Justice Department’s civil division under President George W. Bush and clerked for Supreme Court Associate Justice Clarence Thomas. Given the novel application of the law, the conflicting rulings by the district court judges and the high stakes of the Jan. 6 probe, a government appeal would send the question to the U.S. Court of Appeals for the District of Columbia Circuit and eventually to the U.S. Supreme Court, legal experts said.
Randall Eliason, a George Washington University law professor and former assistant U.S. attorney, said the ruling wasn’t that important but was a “small speed bump” for the Department of Justice.
“One way or another, this issue was always ultimately going to be decided by the D.C. Circuit, and even potentially by the Supreme Court,” he said. “So for now I think the government just soldiers on and continues to use the charge where it thinks it’s appropriate, given the widespread approval by other judges.”
But attorneys representing defendants in Jan. 6 cases said the ruling would likely impact their cases.
Stanley Woodward, who counts the wife of an alleged Oath Keepers leader among his clients, said the decision would “likely embolden” those who face the obstruction charge and “now see a greater possibility for a … conviction to be overturned on appeal.”
Robert Jenkins, who represents a Proud Boy and other defendants, said he expects the ruling to “cause a pause on the trials that are currently in the works” as more attorneys appeal. “Everybody is going to now want to see what the D.C. circuit is going to say.” he said. “It really needs to be resolved before more people go to trial on that charge.”
Tarrio, the highest profile Proud Boy charged in the Capitol attack and who faces the obstruction charge, was arrested Tuesday in Miami on charges that he conspired with followers who attacked Congress last year. Tarrio has not yet entered a plea in the case but has denied that his group planned to commit violence that day.
The ruling also has broader implications. Rep. Liz Cheney (R-Wyo.) has suggested Trump could be charged with obstruction of an official proceeding, as has the House select committee investigating the Jan. 6 events — with the alleged obstruction in Trump’s case related to the counting of electoral college votes.
In an indictment and court filings, prosecutors assert that Miller, 35, predicted the likelihood of violence on Jan. 6, 2021. Authorities also accuse him of pushing past police to enter the Capitol, making various incriminating statements and posting on social media videos and pictures taken inside the building.
Miller has pleaded not guilty. Nichols has rejected a defense motion claiming Miller was a victim of selective government prosecution and has denied his release from jail pending trial. He has been held since his Jan. 20, 2021, arrest in Richardson, Tex.
Before Monday, all of at least seven judges who have ruled to date accepted Justice Department arguments that Congress intended a broad “catchall” provision for obstructive acts after the exposure of a massive corporate fraud in the early 2000s wiped out hundreds of billions of dollars of shareholder value, triggered by the collapse of Enron and the revelation that Enron’s outside auditor, the accounting giant Arthur Andersen, systematically destroyed potentially incriminating documents.
Congress’s whole point in enacting such general clauses is to cover “matters not specifically contemplated,” because lawmakers do “not know what inventive criminal minds” might come up with in the future, Assistant U.S. Attorney Jeffrey S. Nestler has said.