Tim Hale was incarcerated for 16 months following the Jan. 6, 2021, Capitol riot before he was finally given trial in a D.C. courtroom. For nearly a year, Hale, who spent 12 years as an Army reservist, was stuffed in solitary confinement for 23 hours every day, ostensibly because of Covid-19.
The virus, Hale told The Federalist, was a “veil to basically torture us.” Citing the virus, the jail offered no religious services, visitation rights, or even haircuts for approximately a year. “I never had long hair because of the military,” Hale said. By the time he got to trial, he had hair down to his shoulders.
Hale was ultimately convicted of four misdemeanors and a felony under the 1512(c)(2) statute for “obstruction of an official proceeding.” The conviction came with a 48-month prison sentence. A new case adopted by the Supreme Court, however, might erase Hale’s felony conviction and upend hundreds of charges filed by federal prosecutors against those present at the Jan. 6 Capitol riot.
In December, the Supreme Court agreed to take up a case challenging the statute the Justice Department has exploited to prosecute Jan. 6 demonstrators with additional felonies. Federal prosecutors have used the “obstruction of an official proceeding” statute to charge so far more than 300 defendants with felonies in the three years since the riot. It’s the most frequently charged Jan. 6 felony, and the basis for keeping many protesters in jail without bond for months or even years before they reached trial.
Two out of four charges against former President Donald Trump filed in Special Counsel Jack Smith’s criminal probe of the Republican frontrunner are also based on the 1512(c)(2) statute. The Obama-appointed judge in that case, Tanya Chutkan, has built a reputation for doling out draconian penalties for Jan. 6 Capitol rioters
“This 1512(c) charge,” said Ed Martin, an attorney who has represented four riot defendants and assisted 50 more, “is something that has been overused by prosecutors.”
The charge carries a maximum penalty of 20 years in prison. It’s never before been used in the way the DOJ has applied it to Jan. 6 protestors.
“They’ve stretched it to apply it to people it shouldn’t apply to,” said Martin. For example, Martin said, prosecutors have applied the felony charge to low-income defendants likely to take a plea deal under pressure.
DOJ prosecutors added the 1512(c)(2) charge “to other conduct to make it seem like the other conduct is part of something dramatic,” said Martin, who also serves on the board of the Patriot Freedom Project, which offers legal resources to Jan. 6 defendants. Defendants then get advised to accept an offer from federal prosecutors because they simply “cannot afford to roll the dice in a D.C. court.”
Plaintiffs carrying the case to the Supreme Court allege the DOJ has improperly applied the statute. The D.C. Circuit Court of Appeals disagreed in a 2-1 ruling last April. If the Supreme Court’s ruling handed down this spring or summer overturns the appeals court’s decision, hundreds of defendants would have their felony charges dropped or erased if already convicted.
Jan. 6 defendants face many other obstacles to a free and fair trial with jury pools of overwhelmingly Democrat D.C. residents. In September, Chutkan refused Trump’s request to recuse herself despite hateful public statements against the defendant. Hale said a petition to move his trial outside the capital was denied by a different judge.
A September survey shows why Jan. 6 defendants, including the former president and those at the Capitol, have good reason to be concerned. According to the poll from Emerson College, 64 percent of DC residents said they would vote to convict Trump over his objections to 2020 election integrity. Just 8 percent said they would find Trump innocent. Twenty-eight percent said they were unsure.
“We’ve been portrayed as terrorists 24/7 for three years,” Hale told The Federalist. “Most of the people who are making up the jury pool are actually government employees.”