The Supreme Court’s decision to consider the soundness of an obstruction law that has been widely used against those who took part in the attack on the Capitol on Jan. 6, 2021, is already having an effect on some of the rioters.
A small group of people convicted under the law have been released from custody — or will soon go free — even though the justices hearing arguments on Tuesday are not expected to decide the case for months.
Over the past several weeks, federal judges in Washington have agreed to release about 10 defendants who were serving prison terms because of the obstruction law, saying the defendants could wait at home as the court determined whether the law should have been used at all to keep them locked up.
Among those already free is Matthew Bledsoe, the owner of a moving company from Tennessee who scaled a wall outside the Capitol and then paraded through the building with a Trump flag, ultimately planting it in the arm of a statue of President Gerald R. Ford.
Soon to be released are defendants like Kevin Seefried, a drywall installer from Delaware who carried a Confederate flag through the Capitol, and Alexander Sheppard, an Ohio man who overran police lines to become one of the first people to break into the building.
The interrupted sentences — which could be reinstated depending on how the Supreme Court rules — are just one of the complications to have emerged from the court’s review of the obstruction statute, known in the penal code as 18 U.S.C. 1512. The charge has been used so far against more than 350 rioters, including Jacob Chansley, the so-called QAnon Shaman, and members of the far-right extremist groups the Proud Boys and the Oath Keepers.
When the justices announced in December that they planned to scrutinize the law, many legal experts expressed concern that a ruling narrowing its scope or striking down its use in Jan. 6-related cases could deliver a devastating blow to the Justice Department’s efforts to hold hundreds of rioters accountable.
Federal prosecutors have often used the obstruction count in lieu of more politically fraught charges like seditious conspiracy to punish the central event of Jan. 6: the disruption of a proceeding at the Capitol to certify the election.
But in the past few months, judges and prosecutors working on Capitol riot cases have quietly adjusted to the potential threat from a Supreme Court ruling, and the risk that there could be catastrophic consequences to the cases overall no longer seems as grave.
For one thing, there are currently no defendants facing only the obstruction charge, according to the Justice Department. Every rioter indicted on that count has also been charged with other crimes, meaning that even if the obstruction law is removed as a tool of the Jan. 6 prosecutions, there would not be any cases that would disappear entirely.
Indeed, if the court rules that the obstruction count does not apply to the Capitol attack, the main effect of the decision would be on the sentences defendants face. The obstruction law carries a hefty maximum penalty of 20 years in prison and while few, if any, rioters have gotten that much, the statute has routinely resulted in terms of several years.
But some judges have already signaled they would increase the sentences stemming from other charges if the obstruction count was not available to them.
In February, for example, Judge Royce C. Lamberth denied an early release to an Iowa man named Leo Kelly, who was sentenced to 30 months in prison on the obstruction count and six other misdemeanors.
Judge Lamberth’s reason for not setting Mr. Kelly free?
Even if the Supreme Court ruled he was not permitted to sentence Mr. Kelly for obstruction, Judge Lamberth said he could increase the defendant’s total time in prison by imposing consecutive, not concurrent, terms on the misdemeanor charges.
