New DC US Attorney Opens Inquiry Into Unlawful Use of Common J6 Felony

Ed Martin, the acting DC US Attorney, is demanding records related to charging decisions made by his predecessor to unlawfully apply a document-tampering statute against 350+ J6ers.

Paul Hodgkins, a 38-year-old crane operator living in a working-class neighborhood of Tampa, traveled alone by bus from Florida to Washington DC to attend President Donald Trump’s speech on January 6, 2021. After the speech, Hodgkins, like thousands of fellow Trump supporters, walked from the Ellipse to the grounds of the U.S. Capitol.

At 2:50 p.m., more than 35 minutes after the first breach, Hodgkins entered the building. Carrying a “Trump 2020” flag, Hodgkins made his way to the Senate floor and took a selfie. He raised the flag inside the chamber then peacefully exited the building at 3:15 p.m. He did not assault police or vandalize government property.

Nonetheless, Hodgkins was arrested by the FBI on February 16, 2021 on his way to work. Armed agents proceeded to raid his home and seize his electronic devices. A magistrate judge in Washington placed Hodgkins, an Eagle Scout with no criminal record, on a high intensity monitoring program requiring him to wear an ankle bracelet and abide by a curfew, only allowing him the freedom to go to work; he also was forbidden from traveling outside the Tampa area.

Charged with a federal felony, Hodgkins also had to surrender his passport and was prohibited from possessing a firearm.

His crime? 18 U.S.C. 1512(c)(2), obstruction of an official proceeding, an evidence-tampering statute punishable by up to 20 years in federal prison.

From Paper Shredding to Political Protesting

The statute, enacted in 2002 as part of the Sarbanes-Oxley Act in the aftermath of the Enron-Arthur Anderson accounting scandal reads:

“Whoever corruptly— (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.”

Hodgkins was one of hundreds of J6ers eventually charged by the Department of Justice with 1512(c)(2), representing the first time the felony had been used against political protesters. Hodgkins also was the first to plead guilty.

Despite his cooperation and quick decision to take a plea offer, prosecutors wanted Hodgkins to spend 18 months in federal prison. “Hodgkins admitted that he corruptly obstructed and impeded an official proceeding, namely the certification of the Electoral College vote count. He did so by unlawfully entering the U.S. Capitol alongside hundreds of other rioters with whom he shared in a unified goal: to block Congress from completing the certification,” assistant U.S. Attorney Mona Sedky wrote in the government’s July 2021 sentencing recommendation.

Describing January 6 an act of “domestic terrorism,” Sedky further argued that a long prison term was necessary to “deter others” from committing similar acts of terrorism.

During his sentencing hearing before Judge Randolph D. Moss, Hodgkins explained that going to prison would result in losing his job, a potential apprenticeship, his rental home, and his two cats. (Hodgkins also spent what he described as his life savings of $20,000 on his defense attorney.) “Without a shadow of doubt, I am truly regretful for my actions and the way this country I love has been hurt.”

But in determining Hodgkins sentence, Moss encountered a problem. Between 2014 and 2020, only nine individuals had been sentenced on a 1512(c)(2) conviction—and none of the cases were in Washington, D.C., further underscoring the DOJ’s unprecedented use of the statute related to political demonstrations. The judge had no comparison from which to base his sentencing decision.

Regardless, Moss sentenced Hodgkins to eight months in prison and two years of supervised release. Insisting that “democracy is in trouble,” Moss claimed January 6 caused “damage that will persist in this country for decades.” (Moss also claimed that by raising a Trump flag inside the Capitol, Hodgkins was “staking a claim on the Senate floor, declaring his loyalty to a single individual over a nation.”)

Trump DOJ Opens the Books

But Hodgkins’ case along with similarly situated J6 defendants is currently the subject of an internal DOJ inquiry. On Monday, Ed Martin, the acting U.S. Attorney for the District of Columbia, the office that had handled the J6 prosecution until it was shuttered last week, sent an email to office employees seeking “all files, documents, notes, emails and other information" related to 1512(c)(2) charging decisions. Martin, citing the Supreme Court’s decision last June that reversed how the DOJ applied 1512(c)(2), described the cases as “a great failure of our office” and pledged to “get to the bottom of it.”

Martin’s inquiry is expected to be wide ranging and complex. After all, the charge represented the felony heart of what the DOJ called the “Capitol Siege” criminal investigation, one of the largest in the department’s history.

Over the course of three years, the DOJ charged nearly 350 J6ers, one-quarter of the total caseload, with 1512(c)(2). Roughly 170 were convicted—either found guilty at trial or pled guilty—resulting in prison time for at least 100 defendants where sentences ranged from several months to several years in prison.

Prosecutors even sought, and in some cases received, pretrial detention for defendants whose most serious offense was the obstruction count. (Jacob Chansley, the so-called “QAnon Shaman,” was denied release and spent almost ten months in prison, mostly in solitary confinement, before accepting a plea offer on 1512(c)(2).)

And it was not the first time the DOJ attempted to employ the statute in a politically charged investigation. Former Special Counsel Robert Mueller determined that 1512(2)(2) was “the most readily applicable” statute related to his investigation of Trump’s alleged collusion with Russia before the 2016 election. In his 2019 report, Mueller claimed 1512(c)(2) “covers a range of obstructive acts directed at pending or contemplated official proceedings.” (Mueller concluded that his investigators could not prove that Trump did not commit obstruction but did not recommend charges.)

But where Mueller failed, former Special Counsel Jack Smith prevailed. The 1512(c)(2) count represented two of the four counts in Smith’s now-dismissed indictment of Donald Trump related to the events of January 6.

Further, J6 prosecutors largely relied on the arguments made in the Mueller report as to the “broad” nature of the statute to make the charge stick in Jan 6 cases.

Many Culprits--Starting with the Prosecutors and DC Judges

But defense attorneys consistently argued that the government had erred by claiming the certification of electoral college vote represented an “official proceeding.” They insisted the law also required proof of tampering with or destroying records in the course of an investigation—what happened during the Enron investigation—or acting “corruptly,” a caveat within the text of the statute.

Fifteen judges on the D.C. District Court disagreed with the defense. “An ‘official proceeding’ under 1512(c)(2) does not include any and all series of actions before Congress; rather, the proceeding must be akin to a formal hearing. Congress’s Joint Session to certify the electoral results is such a formal hearing,” Dabney Friedrich, the first judge to sanction its use, wrote in a December 2021 order refusing to dismiss the count against two January 6 defendants. She also concluded that the government did not have to prove the defendant impaired or destroyed records.

Only one judge, Trump-appointee Carl Nichols, dismissed the count in three J6 cases. The DOJ appealed his decision and the matter was taken up by the D.C. Circuit, which in April 2023 returned a razor-thin decision in support of the government. The J6 defendants then took the case to the Supreme Court.

On December 13, 2023, the DOJ was dealt a major blow when the Supreme Court granted certiorari in Fischer v US, the case that originated in Judge Nichols’ courtroom and would determine the fate of the 1512(c)(2) charge in J6 prosecutions. The announcement meant at least four justices wanted to review the matter.

But that did not stop then D.C. U.S. Attorney Matthew Graves, the Biden appointee who accelerated the J6 investigation after taking over the office in November 2021, from continuing to bring the charge or sentence J6ers to prison on 1512(c)(2) convictions. For example, in February 2024, two months before oral arguments at SCOTUS, Graves indicted a Michigan man on 1512(c)(2) for spending roughly 30 minutes inside the Capitol after the joint session had recessed.

But Graves’ last-ditch effort to save the J6 prosecution’s most common felony ultimately failed. On June 28, 2024, the Supreme Court in a 6-3 decision—Justice Ketanji Brown Jackson sided with the majority and Justice Amy Coney Barrett sided with the minority—overturned the DOJ’s use of the statute in J6 cases.

“To prove a violation of Section 1512(c)(2), the Government must establish that the defendant impaired the availability or integrity for use in an official proceeding of records, documents, objects, or as we earlier explained, other things used in the proceeding, or attempted to do so,” Chief Justice John Roberts wrote in an opinion that contradicted both Mueller and the Biden DOJ.

Roberts further warned about the future consequences of the government’s broad reading. “[That] novel interpretation would criminalize a broad swath of prosaic conduct, exposing activists and lobbyists alike to decades in prison. As the Solicitor General acknowledged at oral argument, under the Government's interpretation, a peaceful protester could conceivably be charged under 1512(c)(2) and face a 20-year sentence.”

Too Late for Too Many

But the opinion did not reverse the human cost of the wrongful prosecution. Defendants who spent time in federal prison cannot get that time back. Many were bankrupted paying for attorneys and as a result of losing their jobs after being indicted on a federal felony. Marriages broke up and families fell apart.

After finding out the DOJ would seek years in prison after pleading guilty to obstruction, Matthew Perna, a 37-year-old man from Pennsylvania with no criminal history, hanged himself in his garage in February 2022. “Matthew Lawrence Perna died on February 25, 2022 of a broken heart. His community (which he loved), his country, and the justice system killed his spirit and his zest for life,” his obituary read. (Perna was one of at least four J6ers who committed suicide after being indicted by the DOJ.)

Although now pardoned by President Trump, Paul Hodgkins still wants a DOJ inquiry into his case and others. “U.S. Attorney Martin’s investigation is extremely encouraging and it gives me sense of hope that we may repair a justice system that has been damaged and abused,” Hodgkins told me via text on Tuesday. “I am confident that the investigation will likely find examples of prosecutorial misconduct, and I hope that this will be brought to light for the American people.”

Another defendant convicted of obstruction also is eager for accountability. Thomas Caldwell, a decorated and disabled Naval veteran whose Virginia farm was raided by armed FBI agents in late 2021, was charged with obstruction and other offenses. He was denied release for 53 days following his arrest; a D.C. jury found Caldwell guilty of obstruction in November 2022 but his conviction was vacated following the Supreme Court ruling. “Prior to January 6th, this statute was never used to prosecute protesters exercising their right to free speech and to peacefully assemble,” Caldwell told me in an email. “The DOJ says their use of this statute was not political. I don’t think many people believe that.”

But not everyone supports the investigation. Representative Jamie Raskin, pardoned by Joe Biden for his role on the January 6 Select Committee, called Martin as a “criminal” for looking into the botched prosecution. The inquiry is nothing more than a “wild goose chase,” according to Ashley Akers, who recently resigned from the office after handling many J6 cases. “We know we didn’t [do anything wrong] and know we did our job,” Akers told MSNBC’s Jen Psaki this week. She also said the communications related to 1512(c)(2) charging decisions could consist of “tens of thousands of files and documents.”

A preliminary report on Martin’s findings is due soon.