On Tuesday, a U.S. appeals court upheld the use of a criminal trespassing charge against nearly all of the 1,500 defendants accused of participating in the January 6, 2021, riot at the U.S. Capitol, rejecting efforts to further limit the charges available to prosecutors.
A ruling against the government could have disrupted numerous Jan. 6 prosecutions, as about 95% of Capitol riot defendants have faced the trespassing charge, according to the U.S. Justice Department.
In a 2-1 decision, a panel from the U.S. Court of Appeals for the District of Columbia Circuit denied defendant Couy Griffin’s appeal to overturn his conviction for misdemeanor trespassing in a restricted area protected by the U.S. Secret Service. Griffin argued that prosecutors must prove he knew Vice President Mike Pence was at the Capitol on the day of the riot, which required Secret Service protection. Pence was overseeing the certification of the 2020 election results at the Capitol.
However, the court ruled that prosecutors only needed to prove that Griffin knowingly entered a restricted area, not that he knew Pence was present. “We have no basis to conclude that Congress intended to undermine its vital aim by requiring proof that an intruder knew, when he breached a federally restricted area, that a Secret Service protectee was or would be present,” wrote U.S. Circuit Judge Cornelia Pillard for the majority.
Several defendants have contested the charge’s application in Jan. 6 cases. In June, the U.S. Supreme Court overturned the Department of Justice's use of the obstruction of an official proceeding charge under 18 U.S.C. § 1512(c)(2), prompting prosecutors to reassess over 250 cases.
Griffin, a former New Mexico county commissioner and founder of the “Cowboys for Trump” group, entered the Capitol grounds during the riot and climbed onto a stage built for the upcoming presidential inauguration. He was convicted of two misdemeanors and sentenced to 14 days in jail in 2022. Neither the U.S. attorney’s office nor Griffin’s lawyer has commented on the court’s ruling.
