Lawfare Daily: Legal Threats to the Jan. 6 Convictions with Kyle Cheney

[Intro]

Kyle Cheney: You know, the restriction is because the Secret Service protectee on the grounds so that has to be part of the equation. But whether the defendant had to know that or not is what's in question. And these courts, again, about 50/50 split in the district, now, saying, they did actually have to be aware that there was a specific Secret Service protectee on the grounds or coming to the grounds.

Roger Parloff: It's the Lawfare Podcast. I'm Roger Parloff, senior editor at Lawfare, and I'm with Kyle Cheney, senior legal affairs reporter for Politico.

Kyle Cheney: If you keep seeing the courts eat away and chip away at, you know, the conduct that happened that day and whether it is or isn't illegal and whether it was properly charged or not, it becomes a much more nuanced and complicated story if, you know, the heart of the criminal case, the heart of the investigation, that's all getting wiped away by the courts you know, years after the fact.

Roger Parloff: Today we're talking about Kyle's recent article in Politico, about the growing number of, quote, legal and political landmines that could blow up accountability for the riot at the Capitol.

 [Main Podcast]

So, Kyle, Politico's formal headline for your story was, so people can Google it, is “There’s A Growing Number of Legal Threats to DOJ’s Jan. 6 Cases.” So, give us an overview of your thesis and how you came to write this.

Kyle Cheney: Sure. So, we've been observing the, you know, now 1500 plus cases stemming from the riot on January 6^th in 2021. And, you know, for the most part, the Justice Department has been hailing this as a massive success. I mean, a massive investigation overall, in fact, the largest in history. And so, every month we get updates with this is how many people were have been arrested, this is how many people have been convicted, and of what charges, and it's just, they're trying to underscore what a huge undertaking this is.

And yet over time, especially within the last year or two, we started to see some of the challenges brought by these very defendants to the charges at the heart of these cases, some of them starting to take root. And, and it's effectively, they're not always erasing the cases but they are undermining them. They're forcing prosecutors to go back to the drawing board in some cases or drop certain charges and it's made the whole picture of what's going on, especially with some of the things that are still pending, a little less triumphant, I think, than DOJ would like it to be at this stage.

Roger Parloff: Yeah, yeah. And what are the, just outline what are the key ones and, and then we'll go through them one by one.

Kyle Cheney: Sure, so there's a few but there's the number one issue that I'm looking at coming out of the D.C. courts, where most, where all these cases are being brought, is related to the charge of entering and remaining in the Capitol. That's a trespassing charge, essentially, and it's basically the only charge that's common to virtually every single case.

You stepped across the restricted perimeter of the Capitol, you broke that law, and prosecutors aren't charging every single person who did that, because that would be many, many, many thousands, but anyone who went into the building, certainly, they're trying to round up. This charge, considered a staple in every case. It's just, you cross that line, you can at least be charged if not convicted of it.

And yet, the courts, for some reason, three years later, decided, actually, you might need to prove more than that someone crossed that line. You might need to also prove that they knew there was a Secret Service protectee in the building or planning to be in the building. That would be Mike Pence, that would be Kamala Harris, who was VP-elect at the time, and Mike Pence's family. And if you couldn't prove that, or if they didn't prove it in many of the hundreds and hundreds of cases that have already gone through, then the charge is now subject to challenge. And so, it's a little bit bizarre that it's taken this many years to start seeing these challenges take root, but suddenly, again, this common charge to almost every case is being questioned.

Roger Parloff: Yeah. But I guess let's continue on with that misdemeanor issue, because this is really, like you say there's more than 1400 of these charges. Out of the 1500 cases, it's really more than 90%. There is a case pending, I take it, at the D.C. Circuit. Can you discuss that?

Kyle Cheney: Yeah, so this is the case of Couy Griffin, who is a Trump ally from New Mexico, and was one of the first to go to trial. He was the first misdemeanor, the defendant, to go to trial in a bench trial before Judge McFadden. He was convicted of a single count of entering and remaining on restricted Capitol grounds that day. And he's challenging, his challenge has been pending now for a couple of years and the D.C. Circuit is due to rule, any moment, on this issue.

But what we've seen while we're waiting for the D.C. Circuit, just within the last few months is some of the district court judges have started ruling against the Justice Department on this issue. And this is not an ideological thing. We've seen some Trump-appointed judges, some, you know, Obama and now Biden-appointed judges all adopt the same view that DOJ had a higher burden of proof than they initially thought to convict on this charge. And, you know, the government is saying this doesn't make any sense, you know, our read is that if you, all you to do is know the area was restricted and if you cross that line, you violated the law.

There, there is a part of the law that requires there to be-. You know, the restriction is because the Secret Service protectee on the grounds so that has to be part of the equation. But whether the defendant had to know that or not is what's in question. And these courts, again, about 50/50 split in the District, now, saying, they did actually have to be aware that there was a specific Secret Service protectee on the grounds or coming to the grounds.

Roger Parloff: Yeah. And because we're Lawfare, let me just tell our readers a little, if they want to look this statute up, it's 18 U.S.C. § 1752. And there's several different versions of it. But it's things like entering and remaining in a restricted building or grounds. And then, you know, restricted building or grounds is defined in a way that you would expect initially: it's an area that's posted off, cordoned off, or otherwise restricted area.

And then comes, you know, if it were just that, there wouldn't be federal jurisdiction. You would just have, you know, sort of a state law trespass. So it goes on and says, it's cordoned off because, in effect the president or other person protected by the Secret Service is or will be temporarily visiting. So the question is whether that knowingly, at the very top, knowingly entering and remaining in a restricted building or grounds, carries all the way through and means you'd have to know that there's a protected person on the ground. And when you think about it gets really crazy because you would have to post, you know exactly what you don't want people to know which is that-

Kyle Cheney: Don't trespass here because the president is coming, you know it's like are you telling everyone?

Roger Parloff: Yeah, the guy you're trying to hang, Mike Pence, he's here, he’s here. So, you know, it's a, this is one that really scares me. And like you said, you know, and correct me if I'm wrong, but I think it was Carl Nichols initially, the same guy that first did the 1512(c)(2). But then, since then, like you say, it's been he's been persuasive and it's not the same lopsided sort of quasi-politically aligned, here it's, you know, it's quite worrisome to me.

Kyle Cheney: Judge, the chief judge, Chief Boasberg recently wrote that, you know because a lot of these cases are now coming to fruition and they're waiting for the D.C. Circuit case, ruling to come out and so some of these judges are a little confused about what to do so they're postponing certain decisions saying we got to wait for the Circuit to tell us now. And we thought we had one presumption all along for years that we assume these cases were solid and now we're second guessing that. And he said, you know, it's, he said, right, he said district courts’ ruling on this issue any for the time being while we're waiting is like writing a message on the sand on the beach to have it washed away by the ocean.

Roger Parloff: Yeah.

Kyle Cheney: He said, we just, we're in a sort of the holding pattern.

Roger Parloff: Yeah. And the oral argument I think was like December 2023. So, it's almost 10 months now and quite worrisome.

And one other thing I'll mention is that there is a criminal version of the, I mean, a felony version of this. You know, if you go on the restricted, into the restricted zone, with a dangerous or deadly weapon, deadly or dangerous weapon, it's a felony. And more than 10 percent of these cases are felonies. And they will be wiped out too for the you know, if this if you need to have proven that there's a protected person.

Kyle Cheney: And I guess I would say the one thing that sort of offsets the significance of a potential ruling against the Justice Department is that a lot of these cases have, you know, because most of them are misdemeanor cases, they've been processed, people have pleaded guilty to these, and they've even served their sentences at this point to the extent that even if this charge is thrown out, either they've waived their rights to appeal it, or they've already gone through the system.

But I think, so part of my reason for writing the story was really to talk about how is this investigation going to be viewed in history? And it's, kind of, hard to gauge that, but one of the things is if you keep seeing the courts eat away and chip away at, you know, the conduct that happened that day, and whether it is or isn't illegal, and whether it was properly charged or not, it becomes a much more nuanced and complicated story if, you know, the heart of the criminal case is the heart of the investigation that's all getting wiped away by the courts you know, years after the fact.

Roger Parloff: Yeah. There's one, before we leave the, this misdemeanor thing I don't know, did you, I happened to listen to the oral argument, and did you?

Kyle Cheney: I did, it's been a while. My recollection is it wasn't, it was not quite clear where they were going to land. I think they, there was some skepticism, but I don't think, I don't know if they fully tipped their hand, but you may remember better than me.

Roger Parloff: No, yeah, I did not find it decisive at all. And but what I was going to say was how strange the arguments get, because Couy Griffin's attorney began to argue, you know, if you need knowledge that a Secret Service protected person is on the premises. You know, he was arguing, well, Couy Griffin got there after, you know, the riot was in full swing. He assumed that the Secret Service would have whisked Pence off the scene by then. And so, and how would he know whether Pence, and in fact, nobody knew where Pence was, so how would he know? So, if you have to prove beyond a reasonable doubt that he knew that, it gets crazy.

Kyle Cheney: Right, because I don't think anybody in the crowd could have really known where Pence was. And so if the idea is they, I mean, it'd be plausible for anyone to say, we assumed he was gone, we assumed he, you know, that the session was canceled. Some people said they assumed the session was over.

Roger Parloff: Yes.

Kyle Cheney: By the time they got to the Capitol, and that's in other contexts. So, I mean, really, I don't know how you sustain any of these charges if that becomes an acceptable argument.

Roger Parloff: Yeah, I agree.

Kyle Cheney: And the biggest impact is on cases that have yet to be brought. I mean, we're nearing, look, we're, you know, we're nearing the four-year mark. There's about one more year of cases to bring, but there's still hundreds of people who went into the restricted grounds that I think are, have not yet been charged. And so if this becomes not a tool that prosecutors can no longer use, that's probably the biggest impact that’s going forward.

Roger Parloff: Right. So then tell us one of the other, this wasn't the sole example you were giving, of course. What was another one?

Kyle Cheney: So that's that, that one is the biggest one coming out of D.C. The other one that I find actually maybe the most fascinating one is this issue of the geofence warrant. And that's one where, you know, in the January 6^th context, because thousands of potentially criminal acts happened all in one specific geographic location, the government was able to get a warrant from Google to basically use their location tracking services to see who was in the specific restricted area, the Capitol building, at a specific time of day. And you track essentially their devices within a reasonable degree of certainty and say those people probably committed crimes. They shouldn't have been there.

And the Justice Department has used that warrant to at least corroborate, if not initiate, you know, hundreds of cases against January 6th defendants. And the reason I included that on my list of threats is because the Fifth Circuit, in a completely unrelated context, has ruled that geofence warrants are inherently unconstitutional. That doesn't apply here, but this seems like something that's ripe for, you know, another, further appeals and could become a broader issue.

Roger Parloff: Right. When I first started following these cases, that, it's one of the more striking things you see in a lot of the complaints, is this sort of map that. And this is not the proof that they did it, but like you said, it's a piece of the suspicion that you then check out. But it's a map of the Capitol, the footprint of the Capitol and then it's like a heat map with that sort of shows where the person based on his phone's geolocation information went within this footprint with sort of circles, which give you an idea of where the margins of error are. It's really a remarkable and sort of, you know, scary at the Big Brother level-type thing, but it's been an incredibly useful tool.

Kyle Cheney: It is. And I think in the January 6th context, I think it's actually an interesting case because it's almost a unique case because on January 6th, you know, height of COVID, businesses were closed, people weren't out on the street. The roads were closed because of the joint session of Congress and the location that was pinged was pretty much aligned with the contours of the Capitol.

So, the odds that you're going to see, the people that have concerns about geofence warrants are worried about sweeping up innocent people being, people being surveilled who shouldn't be getting roped into criminal alleged criminal conduct because they were in the wrong place at the wrong time. That was almost impossible on January 6th, because other than members of Congress, staff, some journalists who had passes to be there. And that's the thing: prosecutors can look up who was authorized to be there based on their press credentials or their staff credentials and cut, cross them off the list.

You pretty much have a faithful, accurate rendition of who was not supposed to be there. So, these concerns about being overbroad, you know, sweeping in too many innocent people was at least lessened in this context.

Roger Parloff: Yeah. And you mentioned in the piece a couple other reasons why we shouldn't freak out over this Fifth Circuit ruling.

Kyle Cheney: Sure. The biggest one is probably what the Fifth Circuit had actually decided, which was even though geofence warrants are unconstitutional, they actually upheld the case that they were deciding because they said prosecutors had a good faith reliance on that warrant. It was granted to them by a judge to do what they did. So while, you know, maybe going forward, they can't use the same tactics. At least in this case, they operated the way they were supposed to, given the belief that the warrant had been approved, and it was approved. And you can see that happening here.

You know, these warrants were again, judicially approved, even upheld by some judges in D.C. and for all the reasons I described, why these this warrant in particular is less likely to sweep in, you know, lawful conduct, lawful actors. I think you'd be hard pressed to have a judge throw the, throw out the existing cases, let, may, again, may affect future cases. But I guess the interesting thing is, when this goes up, if this goes up to the Supreme Court, you never know what kind of blanket rule you're going to get. It just is, you know, it's always a risk, but it is hard to see them erasing cases that have already been brought.

Roger Parloff: Yeah, I think I agree with you. And you also mentioned that the Fourth Circuit had come out the other way, so this isn't the only time an appellate court has looked at it.

Kyle Cheney: Right. And I think the D.C. cases, the challenges were brought, especially Rudolph Contreras, his opinion was very thorough on this and very compelling. for the reasons I mostly outlined. And so I think there is conflicting case law on it, which to me suggests it will go up but who knows how, when that will be.

Roger Parloff: Right. I also happen to see a Twitter discussion by Orin Kerr, he's a professor at the University of California, Berkeley, now a big Fourth Amendment authority. And he referred to this Fifth Circuit ruling as quote, bananas. So, there's that too.

Kyle Cheney: It's not the only time I've heard the Fifth Circuit described that way.

Roger Parloff: Okay. Then there was another issue that you brought up in your piece, which is pardons, tell us about that.

Kyle Cheney: This is, I mean, this is the existential crisis for DOJ, which is if Donald Trump wins the election. At least according, at least rhetorically, he said, I'm going to go in and, you know, pardon many, if not most of the people who were charged for January 6^th. You know, accused them of being political, politically targeted and says it has been a, you know, a different standard applied to Trump supporters versus, you know. And most of it is unsupported, and if you look at the facts, it's just not reality.

But if he does that, you know, he would have the unfettered authority to do that as president. And I think that could essentially erase the legacy that DOJ has built for the last few years on this issue. I mean, that, again, that's sort of the heart of this story is that this is a defining investigation for DOJ. This is, in their view, an attack on democracy, nearly successful, real existential threat to our government, our system of government, the transfer of power. And this is their really strong response to it. And it could all be erased or largely erased if Donald Trump wins.

Roger Parloff: Yeah. And I haven't been following closely his rhetoric. Does he draw any distinction between gradations of violence or have you?

Kyle Cheney: With Donald Trump, he always leaves wiggle room, but I think he was asked very specifically at, when he was at the National Association of Black Journalists event, does that, you've promised to pardon these defendants. Does that include the people who attacked police? And he said, yes.

Now, I'm not sure if he pressed further on that, he might nuance it somehow, but that's what he said. And, you know, I think, he has argued, I mean, he made that song, the Star Spangled Banner that he did with some of the people.

Roger Parloff: Yes, the January 6th Choir.

Kyle Cheney: Right, and these are some of the most, you know, notoriously violent actors on January 6th, so he doesn't seem to be shying away from that.

Roger Parloff: No, no. It includes the fellow who sprayed Brian Sicknick in the face, and Caroline Edwards as well.

Kyle Cheney: Exactly.

Roger Parloff: And then, you also mentioned, and we sort of, we didn't even mention it here because our readers sort of know, I mean, know about it. I think at this point, but it's 1512(c) itself, 18 U.S.C. § 1512(c)(2), obstruction of an official proceeding. Obviously the Fischer case on June 28^th, the Supreme Court greatly narrowed the scope of that felony. Remind the readers, generally what that was and then do you have a feel for what's been the impact so far?

Kyle Cheney: Sure, so this impact has actually been bigger than I expected.

Roger Parloff: Yeah, I mean, that's, I agree with you there

Kyle Cheney: The, the law itself stems from you know, the Enron era investigation was about criminalizing the destruction of evidence that might be used in an official proceeding, and normally you think of, you know, grand jury proceeding or, you know, congressional investigation. Here, the government has argued that official proceeding was the joint session of Congress. And most courts have agreed that counts as a proceeding that would be subject to this.

But where the Supreme Court came down was, you have to, there has to be the physical destruction of evidence or impairment or a concealment of something that would be a value to the joint session. And just, you know, being in the Capitol and being violent or being, you know, trying to impede Congress doesn't necessarily equate to affecting physical evidence like the electoral college ballots, for example.

So DOJ in response to the Supreme Court has dropped dozens of these charges. And again, these were sort of the core felony charges. A lot of people who went in weren't violent, but certainly did want to prevent Congress from certifying the election. And that was how they drew the line. If someone showed that they really were motivated to try to stop Congress from completing the transfer of power, that person might get a 1512 charge as opposed to just the misdemeanor charges.

And so, DOJ dropped many more than I expected, especially because I think the Supreme Court left some wiggle room to sustain these charges if they can show that these defendants actually did try to prevent the electoral college ballots from being taken, destroyed, prevented Congress from accessing them, whatever. And so what we've seen is DOJ mostly just scrapping the cases and moving along.

And in some cases, these people have other felony charges. They might have assaulted somebody. They might have been part of the riot outside, civil disorder. In that case, it's less of a risk to drop the obstruction count because you're still going to get them a pretty significant sentence. But in cases where 1512 is the only felony, you're talking about a big disparity in what they might get versus what they can get with just misdemeanor charges.

Roger Parloff: Yeah, I just checked some of these, happened to check some of these before the interview. Like, Anthony Williams got 60 months, without that, he's one of the ones that has, where 1512(c), that was his only felony, without it, it drops to 12 months.  Matt Bledsoe, 48 months, without it, it drops to 12 months.

Although it's still being litigated, whether the judge might, in theory, have the right to re-sentence and could, could make those misdemeanor convictions go consecutive. But I know at least one judge does not seem inclined to do that. And then I think it's even had an impact, you mentioned, on, on one of the people that did have another felony. He's had his sentence reduced as a result of this.

Kyle Cheney: Well, I know Thomas Robertson, I don't know if that's who you're thinking of. Thomas Robertson, he was, he actually was one of the key cases that went up to the appeals court on the 1512 count and the appeals court ruled that the obstruction count could stand before, this was obviously before the Supreme Court decided against that. But he, the government dropped his obstruction count and he was resentenced. I think it was from 90 months down to 72 months. So still a substantial sentence that he's got, but he will obviously fight that as well. He's already appealing that revised sentence.

Roger Parloff: Oh, is he? I didn't know that. I think it was 87 down to 70. Yes.

Kyle Cheney: 87 down to 70. Yeah, that's right. And DOJ argued that the judge just sent re-sentencing to the same sentence he got the first time and the judge was uncomfortable with that. He said, you know, we can't just remove this and then pretend like everything is the same. But I do think other judges are disguising ways to, you know, very upward from what they might have normally given to account for the conduct that is now no longer punishable or no longer charged, cause they don't want disparities to exist. And that's part of their remit as judges to limit unwarranted disparities.

Roger Parloff: Right. Well, am I leaving anything out? Is that, have we sort of, covered your key points? I think-

Kyle Cheney: Yes, that certainly covers the points in the story. I'm sure there's many things I left out about all the different ways this can go right or wrong for DOJ over the next few months.

Roger Parloff: Well, anyway I recommend readers look up the article in Politico and read it themselves. It's well worth it. And thank you so much, we're gonna leave it there, but thank you so much, Kyle, for coming on.

Kyle Cheney: Of course. Always good to be with you, Roger.

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