DOJ has a near-perfect record in Jan. 6 cases. But it’s starting to stumble.

Federal prosecutors have brought more than 1,200 criminal cases related to the Jan. 6, 2021 Capitol riot with nearly unbroken success in the courtroom — until now.

Three years after a pro-Donald Trump mob threatened the transfer of power, Justice Department attorneys are suddenly facing a growing list of legal stumbling blocks as they continue to pile up new arrests arising from the insurrection.

The new setbacks have already resulted in two Jan. 6 defendants being released, at least temporarily, from prison terms, and several others having their cases indefinitely delayed. The unexpected hurdles are a reminder of the unprecedented nature of the attack itself and the uneasy fit of the laws prosecutors chose to deploy against those who participated in it.

At the top of the list is the Supreme Court’s announcement last month that it will review the scope of one of the primary felony charges brought against Jan. 6 defendants: obstruction of an official proceeding. The court’s decision to take up that issue calls into question charges against hundreds of rioters, not to mention part of special counsel Jack Smith’s criminal case against Donald Trump himself.

“We thought it was settled, but not any more,” U.S. District Judge Beryl Howell said ruefully during a hearing last month, referring to the legal interpretation of the obstruction law.

Also in recent weeks, two federal judges issued surprise rulings that undercut two of the key misdemeanor charges brought against nearly every Jan. 6 defendant — charges related to trespassing in a building being protected by the Secret Service. The judges, Trump appointee Carl Nichols and Obama appointee Christopher Cooper, ruled that, in order to be guilty of the charges, defendants had to be aware that then Vice President Mike Pence or other Secret Service protectees were on Capitol grounds or expected there — a higher standard than previously understood.

The impact of these adverse rulings may end up being limited. Appellate courts may embrace the Justice Department’s positions. And hundreds of defendants have already accepted plea deals that limit their right to appeal. Many have already served their jail sentences or didn’t get jail time at all.

But the legal landscape around the probe — the largest investigation in DOJ history — is as unsettled as it’s ever been.

Obstruction statute under review

The Supreme Court will hear arguments this spring on whether prosecutors have stretched the meaning of the federal obstruction law. A decision will follow by June. But already, the high court’s decision to scrutinize the law has begun rippling through dozens of felony riot cases and threatens to upend even more.

Last week, for example, a federal judge sprung a Jan. 6 defendant from jail five months into his sentence, citing the justices’ consideration of the statute.

U.S. District Judge Amit Mehta released defendant Thomas Adams, who had been convicted of obstruction and related misdemeanors. Mehta noted that Adams would likely have received a significantly shorter sentence without the obstruction charge and therefore should be freed until the justices rule on the validity of the charge.

Prosecutors urged Adams be kept in jail, but Mehta disagreed, saying that the Supreme Court’s decision to take up the case suggests the outcome is, at minimum, a “close question.”

U.S. District Judge John Bates the next day similarly ordered the release of another defendant, Alexander Sheppard, when his misdemeanor sentence expires, until the resolution of the Supreme Court case.

Three other federal judges — Chief U.S. District Judge James Boasberg and colleagues Richard Leon and Dabney Friedrich — have postponed pending Jan. 6 cases in which obstruction is the only felony charge.

More than 30 Jan. 6 defendants have similarly asked to delay their trials, sentences or prison report dates. Several who face additional felony charges like assault or civil disorder have unsuccessfully attempted to delay their proceedings.

The Justice Department has already agreed to pause appeals related to the obstruction issue. In a slew of filings, prosecutors said the outcome of those appeals could “plainly” be affected by the high court’s ruling.

Howell, the judge who lamented the newly unsettled status of the obstruction statute, expressed concern about the wave of delays.

“We got to move the case along,” she said in court. “Otherwise, what is June, July, August 2024, going to look like for all the judges in this court, let alone all the defense counsel?”

The Supreme Court could resolve two recurring issues that numerous Jan. 6 defendants have raised about the obstruction law. One is a question of whether the law — enacted in the aftermath of the Enron scandal — is meant only to cover tampering with physical evidence like paper documents or files. Nearly every district judge in Washington has rejected that argument, and prosecutors have contended that even under this interpretation, Jan. 6 defendants would still be subject to the charge since they impeded Congress from reviewing Electoral College certificates.

The justices may also consider the definition of the obstruction law’s requirement that defendants act with a “corrupt purpose,” a standard that some defendants say requires prosecutors to prove that defendants knew their conduct was sinister.

About 100 defendants are facing charges in which obstruction is the only felony count, according to a spokeswoman for the U.S. attorney’s office in Washington, D.C. Those who haven’t already served their sentences are the most likely to see a major benefit from any ruling that narrows the scope of the obstruction law.

However, the ultimate consequences for Jan. 6 riot cases could be more modest than Howell fears. A significant majority of the more than 300 defendants charged with obstruction of an official proceeding were also charged with other felonies like assault, civil disorder or impeding police. That means the outcome of the Supreme Court case is unlikely to significantly affect their sentences or likelihood of prison time.

One very prominent case could face problems if the obstruction charge is upended: the election-subversion prosecution in Washington of Trump.

Two of the four federal counts against the former president are based on the statute. If the high court adopts a stricter standard, the obstruction charges could be thrown out altogether or altered to account for the new interpretation, potentially causing delays.

Trespass charges narrowed

The Justice Department’s sudden headaches don’t end with Trump’s case or even the other obstruction cases.

Nichols recently ruled that Jan. 6 defendants could not be convicted of breaching the restricted Capitol building unless they knew that Vice President Mike Pence or his family members were inside. Cooper followed suit earlier this month.

Several other district judges have indicated they’re now grappling with the issue, and a federal appeals court panel is similarly weighing the charge.

The Justice Department contends that Jan. 6 defendants only needed to know that they were not permitted inside the restricted perimeter of the building — whether or not they knew Pence and his family were present. Prosecutors have cited ample evidence: blaring alarms, “area closed” signage, police commands, tear gas, smashed windows and overt clashes between police and rioters at Capitol entrances. But they haven’t been seeking to prove the defendants’ awareness of Pence’s presence.

More than 1,100 of the approximately 1,260 Jan. 6 defendants have been charged with these trespassing offenses, one of four staple misdemeanors that DOJ has deployed against them.

In court filings and trial arguments, the Justice Department has opposed the stiffer requirements proposed by Nichols and Cooper. Congress passed a revised version of the trespassing law in 2012 as a way to prevent potential violent attacks on Secret Service protectees, including the president. If authorities had to announce the presence of a protectee in order to charge violations of the law, it would weaken security, rather than strengthen it, they say.

Washington D.C.’s top federal prosecutor, U.S. Attorney Matthew Graves, used the third anniversary of the attack to highlight the Justice Department’s position, noting that prosecutors had used their discretion to “primarily focus on those who entered the building — or those who engaged in violent or corrupt conduct on Capitol grounds.”

“If a person knowingly entered the restricted area, without authorization, they had already committed a federal crime,” he said in a speech marking the anniversary.

Wide prosecutorial net

Federal prosecutors have promised to bring hundreds more rioters to justice. More than 900 of the defendants arrested so far have been convicted or pleaded guilty, and only one defendant has received a full acquittal — a misdemeanor defendant who was acquitted by a judge after waiving his right to a jury trial.

Still, the recent legal troubles have fueled longstanding questions about whether, in the wake of the shocking riot, the Justice Department cast too wide a prosecutorial net.

Former Attorney General Bill Barr, who resigned days before the Jan. 6 riot — in part because he objected to Trump’s false claims of fraud in the 2020 election — said he believes the Justice Department should not have bothered prosecuting hundreds of people who went into the Capitol building that day but didn’t engage in violence.

“If this administration had given the same attention to other areas of crime, we’d have the safest nation in the world. It’s ridiculous,” Barr told POLITICO.

Barr stressed that he wasn’t suggesting any sort of amnesty for people who fought with police or did damage to the building.

“On the day itself, I said federal agencies had to get up there and deal with it. I’ve been saying all the way through that people who engaged in violence and breached the Capitol should go to jail,” the former attorney general said. “Going further, it’s a waste of resources, and it’s unfair.”

The former prosecutor who oversaw the initial response to the Capitol Riot in early 2021, Michael Sherwin, said he had rejected many potential trespass cases at the outset of the investigation because suspects did not engage in violence, property damage or pushing over barricades.

“That changed when I left. I don’t know who authorized it, but I refused,” Sherwin said in an interview. “I had a bright-line rule … that people should not have been charged if they just walked in through an open door.”

Not all ex-officials agree. Former FBI Director James Comey said last week that everyone should face the full weight of the law. In anop-ed, Comey called most of the participants in the riot “morons who bought Trump’s lies,” but said the government should not let up. “They must be held accountable — every last one of them,” he wrote in the Washington Post.