With Trump now in their ranks, some Jan. 6 defendants see hope

Perryman, 43, has attended many hearings inside the building, hoping to support people charged with trying to block Congress’s work formalizing Joe Biden’s victory in the 2020 election. On this day, she viewed the proceedings via closed-circuit TV, amid far more spectators than normal. But the scene was all too familiar.

As she saw the former president sitting at the defense table and listened to the judge read out the charges against him, she thought: “Welcome to the club, Trump. You’re a J6er now.”

Before the former president was indicted on a charge of trying to overturn the 2020 election, 1,077 people had faced federal charges in some way tied to the events of Jan. 6, according to the U.S. attorney’s office for the District of Columbia. Trump was the 1,078th.

Inside the D.C. jail, defendants being held in Jan. 6-related cases say they are trading legal theories on how Trump’s case could affect their own — and joking about which empty cell could house the 45th president of the United States. Some of those charged in the Capitol attack say they think the newest, highest-profile member of their ranks bolsters the argument that they are “political prisoners,” and they hope his case might offer them some legal help, too.

The right-wing group Look Ahead America added Trump to its “J6 Prisoner Database.” Derrick Evans, a former West Virginia state legislator whose participation in the Capitol riot led to a three-month jail sentence, posted on Facebook about the indictment: “President Trump is getting ready to become a J6 Political Prisoner just like me.”

“We’re like, if Trump comes in here, we’re gonna put him in 45 cell,” said Shane Jenkins, 46, of Houston, who was found guilty of several charges in connection with the riot, including one Trump now faces, and is being held in the D.C. jail. “We definitely talk about Donald Trump. I don’t think they’ll ever put him in jail, per se. And if they do, I hope they would bring him here. We would have a good time, and it would be awesome to get to meet Donald Trump.”

Extremism analysts say characterizing Trump and the Jan. 6 defendants as political prisoners is wrong and could have dangerous consequences.

“Claims that insurrectionists are political prisoners is a way of deflecting accountability, of building political support,” said Lindsay Schubiner, the director of programs at the Western States Center, a Portland, Ore.-based civil rights nonprofit organization that monitors extremism and anti-democracy movements. “And maybe most importantly, a way of normalizing violence against American institutions and our democracy itself.”

Even before he was charged, Trump, who has pleaded not guilty, had promoted the idea that he was being unfairly investigated and that those held in connection with Jan. 6 were being mistreated. He opened the first mega-rally of his 2024 campaign in Waco, Tex., with a recording of the “J6 Prison Choir,” the people jailed for their role in the Capitol riot singing a rendition of the national anthem. His campaign sent an April fundraising email of a fake mug shot of the former president over the words “NOT GUILTY.” Ahead of his arraignment, he posted online that he was being arrested — even though he flew to D.C. in a private plane, appeared in court voluntarily and left afterward.

Of the four counts handed up in the indictment of Trump, two are identical to the charges many Jan. 6 defendants face: obstruction of an official proceeding and conspiracy to obstruct an official proceeding. More than 310 others have been charged with the obstruction count in connection with Jan. 6, and 42 others have faced conspiracy charges, either to obstruct the electoral vote count or to obstruct police during the riot, according to Justice Department statistics.

The obstruction count has been the focus of several unsuccessful legal challenges, and some hope the president being charged with that crime by special counsel Jack Smith will aid their bids to get their convictions quashed. That is possible if the Supreme Court agrees with one D.C. judge that the charge is an inappropriate use of the law.

“The issue of [obstruction] is hanging by a thread,” said defense lawyer and former federal prosecutor Gene Rossi, “given the composition of the Supreme Court, and he appointed three of the justices.”

The obstruction charge was originally crafted after the Enron energy company investigations to prohibit document or evidence destruction, but a second clause adds, “or otherwise obstructs, influences, or impedes any official proceeding,” which in this case means the Jan. 6 electoral vote count. Multiple D.C. judges rejected defense arguments that the law applies only to evidence destruction. But U.S. District Judge Carl Nichols agreed and dismissed the obstruction count against three men. The U.S. Court of Appeals for the District of Columbia Circuit reversed Nichols, and now the case is before the Supreme Court.

“Having Trump as part of the equation,” Rossi said, “that does help the other Jan. 6 defendants charged with obstruction,” since the Supreme Court will be aware that its decision will affect Trump’s case as well as 300 others. But Trump, and most of the 300 others, still face other serious charges related to Jan. 6, Rossi noted, and many already have been convicted of those other charges as well.

Jailed Jan. 6 defendants have paid close attention to Trump’s legal challenges. When Trump arrived for his court appearance, Brandon Fellows, 29, who is in custody in Jan. 6-related charges, said that TVs were turned on and “everybody was watching it.”

Fellows, one of the hundreds of people charged with the obstruction count, said he hopes Trump’s lawyers successfully argue that the particular section of the U.S. criminal code, 1512, is not applicable to Jan. 6 cases.

“As far as him being charged with a 1512, I think that it’s really great, at least for the people in here,” Fellows said of Trump. “We don’t have the resources anywhere near the resources that Trump has. So I think he’ll be able to possibly, even with a corrupt court, I think he’ll possibly be able to get good lawyers on it. And possibly do away with the 1512. Because I think the charge is bogus both for him and also myself.”

Trump almost certainly would not win a motion to dismiss his obstruction charges in front of U.S. District Judge Tanya S. Chutkan, who is hearing his case. That is because the appeals court’s ruling is binding precedent in D.C.— unless there is a Supreme Court reversal, Rossi said. So, fellow Jan. 6 defendants should not expect legal help to emerge directly from Trump’s case.

Obstruction of an official proceeding carries a potential penalty of up to 20 years in prison, although federal guidelines generally call for far lower sentences. In comparison, a misdemeanor conviction for trespassing or illegally demonstrating in the Capitol carries a sentence of a year at most.

More than 760 people have been convicted either by guilty plea or at trial of Jan. 6-related charges. For those sentenced on the obstruction count through mid-June, the average prison sentence has been about 35 months, or nearly three years, according to a Washington Post database. The longest sentence for obstruction so far has been 83 months, or nearly seven years.

On a recent night after Trump’s arraignment, Perryman, whose husband is jailed on Jan. 6 charges, joined a handful of others outside the D.C. jail to hold a “vigil.” The small group gathers every night to protest the Jan. 6 related cases.

Perryman, who is a regular attendee, held a microphone up to her phone, broadcasting the voice of Christopher Quaglin, who was found guilty of several Jan. 6 charges including obstruction of an official proceeding.

Quaglin cited Trump’s calls to move his trial out of D.C. — although his tone was not particularly hopeful. There have been more than a dozen requests by Jan. 6 defendants for changes of venue. None have been successful.

“It’s like a double-edged sword,” Quaglin said. “So what about me? What about my family? What about the rest of the guys in here? What about their families? What about everything that’s gone on for two years?”