In its affidavit supporting criminal charges, the Justice Department showed Air Force lieutenant colonel Larry Rendall Brock on the Senate floor on January 6, 2021 in a helmet and combat gear. That outfit only magnified the anger of many of us over the riot and the interruption of our constitutional process of certification. However, while there was little question of the validity of the charges against him, U.S. District Judge John Bates in March 2023 imposed a two year sentence based on a common enhancing factor cited by the government in many of these cases for the “substantial interference with the administration of justice.” A panel on the D.C. Circuit has now ruled against the use of that enhancer in a decision that could compel the resentencing of dozens of defendants from the January 6th riot.
The Justice Department has long been accused of excessive charging and abusive detention conditions for January 6th defendants. The heavy-handed treatment was apparently by design. In a controversial television interview, Justice official Michael Sherwin proudly declared that “our office wanted to ensure that there was shock and awe … it worked because we saw through media posts that people were afraid to come back to D.C. because they’re, like, ‘If we go there, we’re gonna get charged.’ … We wanted to take out those individuals that essentially were thumbing their noses at the public for what they did.”
District court judges just went along with the use of the enhancement, even though it was based on a highly attenuated claim. As the D.C. Circuit found, “Congress’s certification of electoral college votes does not fit the ‘administration of justice’ mold.” It then noted:
“Considered in context, Congress’s counting and certification of electoral votes is but the last step in a lengthy electoral certification process involving state legislatures and officials as well as Congress. Taken as a whole, the multi-step process of certifying electoral college votes—as important to our democratic system of government as it is—bears little resemblance to the traditional understanding of the administration of justice as the judicial or quasi-judicial investigation or determination of individual rights.”
The argument of the Biden Administration always seemed curious to me given the claims of former President Donald Trump that Vice President Michael Pence had the authority to reject state certifications. I disagreed with that view. However, arguing that this is a type of judicial proceeding would seem to enhance the Trump argument. Yet, that is what the Justice Department did in many of these cases to enhance sentencing.
Ultimately, Judge Bates’ sentencing was not as high as what the Justice Department wanted. Judge Bates detailed the considerable evidence against Brock in his preparation for violence. He wrote before the riot “Do not kill LEO [law enforcement officers] unless necessary… Gas would assist in this if we can get it.” It was also short of the maximum under the guidelines of 30 months. Given the one felony charge, the sentence is not unreasonable, but it may have been reduced by as much as nine months without the enhancer.
There could also be substantial reductions for a couple of hundred of other defendants who were sentenced with the enhancer. It is not clear if the government will appeal the ruling.
We are also waiting for the oral argument in Fischer v. United States, which will consider the use of the felony charge of obstructing an official proceeding against defendants tied to the January 6th riot. Trump is also being prosecuted in part for that crime.
Brock is currently serving his two-year prison term at MCFP Springfield in Missouri.
Here is the opinion: United States v. Brock
