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WASHINGTON – A former police sergeant convicted in the Capitol attack on Jan. 6, 2021, is asking for a shorter a sentence after the Supreme Court ruling on an obstruction charge, an effort that could shed more light on how prosecutors and judges will deal with charges filed against hundreds of defendants, including former President Donald Trump.
Thomas Robertson was sentenced to more than seven years in prison after his conviction on charges of obstruction of an official proceeding, civil disorder, entering and remaining in a restricted building, and disorderly conduct.
Robertson and others challenged the obstruction statute − one of the stiffest charges − which carried a 20-year maximum for temporarily preventing Congress from counting Electoral College votes. Robertson appealed his conviction by arguing the law required that he acted “corruptly” to obstruct Congress, but he lost.
But another former police officer, Joseph Fischer, argued the charge didn’t apply to him or others like Robertson because the statute was drafted to prohibit the destruction of documents, in the wake of the Enron scandal. Fischer and Robertson each entered the Capitol, but denied destroying public records.
The Supreme Court agreed with Fischer and ordered lower courts in June to review obstruction cases to determine whether the charges covered records or documents used in official proceedings. Fischer won’t face the obstruction charge when he is tried.
Robertson is being resentenced Wednesday because he asked for a shorter sentence after the Fischer ruling.
“This decision underscores that while the conviction remains, the sentencing must be revisited under a more favorable framework,” Mark Rollins, one of Robertson’s lawyers.
The high court’s Fischer decision raised questions about how the charge would be applied to hundreds of other defendants. The department said more than 330 of the first 1,400 people charged in the Jan. 6 attack had faced the charge. Two of the four federal charges against former President Donald Trump allege he obstructed an official proceeding of Congress as lawmakers attempted to certify the Electoral College vote.
The Justice Department has said none of the defendants faced that charge alone because they were charged with other felonies or misdemeanors.
Here’s what we know about Robertson’s case:
rosecutors urged the judge to keep same sentence
Prosecutors asked to keep the same 87-month sentence for Robertson based on his overall conduct at the Capitol.
Robertson traveled from the Rocky Mount, Virginia, area with co-defendant Jacob Fracker, another officer in that city’s police department. Robertson confronted police officers defending the West Front of the Capitol and struck at least two officers at the Capitol with a large wooden stick he was carrying, prosecutors wrote in a legal filing.
Robertson later bragged on social media about entering the Capitol with Fracker, where they took pictures of themselves. “If you are too much of a coward to risk arrest, being fired, and actual gunfire to secure your rights, you have no words to speak I value,” Robertson wrote on Facebook.
After being notified of his FBI arrest warrant, Robertson destroyed his and Fracker’s phones. His terms of release called for him not to possess any firearms, but a search of his home six days after his arrest found eight guns and “large amounts of ammunition,” according to prosecutors.
A federal jury convicted Robertson in April 2022 of all six charges against him, including obstruction, interfering with law enforcement, entering a restricted building, two counts of disorderly conduct and destroying evidence.
At the original sentencing, U.S. District Judge Christopher Cooper said Robertson viewed politics as war and would participate in another riot “if you were called upon to go do something like this again.”
Robertson contends his sentence should be shortened because of Fischer case
Robertson challenged the obstruction law differently than Fischer, by arguing it required that he acted “corruptly” in participating in the riot. He argued he didn’t act corruptly because he didn’t seek personal benefit by participating.
A three-judge panel of the D.C. Circuit Court of Appeals unanimously rejected his argument and upheld his obstruction conviction in May. But Judge Karen LeCraft Henderson said in dissent that she would have overturned Robertson’s conviction based on the Fischer decision instead.
“It is not every day that a criminal appeal gives the court a ‘multiple choice’ of grounds on which to vacate a conviction,” Henderson wrote.
Robertson is now asking to reduce his sentence based on two decisions: the Fischer case at the Supreme Court and a case called Brock in the D.C. Circuit Court of Appeals. The Brock decision ruled that Congress counting Electoral College votes doesn’t count as the “administration of justice,” a description that lengthened the federal guidelines for Robertson’s sentence.
“The D.C. Circuit’s decision is a favorable development for Robertson,” Rollins wrote.
Hundreds of Jan. 6 cases included obstruction charges
Robertson’s case could help signal how prosecutors and judges will deal with the Fischer decision.
By Aug. 6, the Justice Department said 133 defendants had been sentenced under the obstruction law. More than half – 76 – were convicted of other felonies, too. Among the ones not convicted of another felony, 40 were given probation and 17 were behind bars.
