Justice Department prosecutors on Tuesday asked the U.S. Court of Appeals for the District of Columbia Circuit to vacate seditious conspiracy convictions of leaders from the Proud Boys and Oath Keepers over their roles in the Jan. 6, 2021, attack on the U.S. Capitol, according to a court filing described by the Associated Press. The government also sought to permanently dismiss the indictments, the filing said, framing the move as consistent with a process the Supreme Court has granted when prosecutors exercise discretion to dismiss criminal cases.
The motion would not just undo individual sentences. The Justice Department said it is requesting that the appeals court erase convictions for extremist group leaders, including Oath Keepers founder Stewart Rhodes, who was not among those whose sentences were commuted or who were pardoned last January, AP reported.
The filing comes after a broad clemency action by President Donald Trump last January, when he commuted prison sentences of several Proud Boys and Oath Keepers leaders and extended the clemency to more than 1,500-plus defendants charged in the Jan. 6 attack, AP said. Prosecutors’ new request would go beyond those commutations by asking for the convictions themselves to be vacated and the cases dismissed at the indictment level for the covered leaders.
In the court filing, prosecutors argued that their request fits the government’s established practice when it decides, in prosecutorial discretion, that dismissal is in the interests of justice. AP reported that prosecutors wrote, “The government’s motion to vacate in this case is consistent with its practice of moving the Supreme Court to vacate convictions in cases where the government has decided in its prosecutorial discretion that dismissal of a criminal case is in the interests of justice — motions that the Supreme Court routinely grants.”
Jurors in Washington, D.C., convicted the Proud Boys and Oath Keepers leaders of orchestrating violent plots intended to stop what prosecutors described as the peaceful transfer of power after Trump lost the 2020 election to Democratic President Joe Biden, AP said. Prosecutors’ dismissal request therefore targets convictions that had been tied to what they characterized as an effort to keep Trump in office.
AP said the Justice Department’s dismissal request includes convictions for Oath Keepers members Kelly Meggs, Kenneth Harrelson and Jessica Watkins, as well as Proud Boys members Ethan Nordean, Joseph Biggs, Zachary Rehl and Dominic Pezzola. Other extremist group members, including former Proud Boys national chairman Enrique Tarrio, received pardons from Trump on the first day of his second term in the White House, AP reported.
Rhodes was sentenced to 18 years in prison after he and several lieutenants were convicted in one of the most consequential cases arising from the Jan. 6 attack, AP said. Prosecutors had said Rhodes and his followers stockpiled guns for possible use by “quick reaction force” teams at a Virginia hotel, though they never deployed the weapons, according to the AP account.
Nicholas Smith, an attorney for Ethan Nordean, told AP that the government’s move is welcome. Smith said in the AP report that they were grateful to the Justice Department for its “wise decision” in seeking dismissal of the convictions, adding, “We don’t want a precedent that says that any physical confrontation between protesters and law enforcement means a crime akin to treason, such as seditious conspiracy,” AP reported.
Michael Fanone, a former Metropolitan Police Officer who was dragged into the Capitol attack crowd and suffered a heart attack after a rioter shocked him with a stun gun, said he was disappointed but not surprised by the latest step in dismantling Capitol riot prosecutions, AP reported. Fanone said, “I would remind Americans that these were traitors to this country,” and added, “They planned, incited and carried out an insurrection,” according to AP.
The appeals court has not yet ruled on the government’s request. If it grants the motion, the decision would eliminate the convictions covered by the filing and leave in place the broader pattern of shifting legal outcomes for defendants tied to the Jan. 6 assault as prosecutors and the courts handle subsequent motions and post-clemency proceedings.