'A triable case' | DOJ says it will take Ohio couple before jury on narrowed Jan. 6 obstruction count

WASHINGTON — The Department of Justice said Wednesday it intends to take an Ohio couple to trial on allegations they obstructed the joint session of Congress on Jan. 6 – even after the Supreme Court’s ruling narrowing the statute earlier this year.

In a new filing, federal prosecutors said they believe their evidence in the case against Shawndale and Donald Chilcoat, of Celina, is sufficient to sustain conviction on the obstruction of an official proceeding charge. In June, SCOTUS ruled defendants charged under the post-Enron obstruction statute must take some action that “impaired the availability or integrity for use in an official proceeding of records, documents, objects or… other things used in the proceeding, or attempted to do so.”

The decision appears to be a first for the Justice Department, which has since early July moved to dismiss the charge in dozens of cases pending trial. But in the Chilcoats’ case, prosecutors said they will only seek an updated jury instruction. The remainder of the filing, which was itself a response to an order from U.S. District Judge Colleen Kollar-Kotelly seeking clarity on how SCOTUS’ decision would affect the case, laid out how the DOJ believes they can achieve a conviction under the newly narrowed statute.

“The government understands that the Court wants to have confidence that the facts here give rise to a triable case,” prosecutors wrote.

According to the filing, the DOJ’s evidence at trial will show the Chilcoats were well aware of the process on Jan. 6 – and the presence of physical ballots – when they joined other members of the mob that entered the Senate Chamber.

Two days prior to the riot, prosecutors say, Shawndale Chilcoat responded to a Facebook friend that she had just called the office of then-Sen. Rob Portman (R-OH) about rejecting “fraudulent” votes. A day later, they said, Shawndale posted on Facebook about then-Vice President Mike Pence saying he “can not reject the votes.” And a day after the riot, prosecutors said, Shawndale said they were “just trying to stop them from certifying the votes and didn’t know they were already gone.” She also allegedly bragged that it was not antifa who stormed the Capitol, but her.

“[O]k so antifa is being blamed for breaking windows and storming congress [sic],” Shawndale allegedly said. “Um no, it was us I was with them and couldn’t be more proud.”

Prosecutors said all of that was enough for a jury to “infer that Shawndale Chilcoat attempted to impair the availability of the electoral college votes which Congress was to consider.” They said due to his joint conduct and their relationship, the jury could infer Donald Chilcoat was attempting to do the same.

“Through their conduct, the defendants demonstrated an intent to invade and occupy the Capitol building and to stop the certification of the electoral college vote,” prosecutors wrote. “And, critically, they were aware that this proceeding involved records, documents, or other things—specifically, the electoral votes that Congress was to consider.”

The DOJ’s theory has yet to be tested, although it aligns closely with how Justice Ketanji Brown Jackson suggested in a concurrence that the obstruction count could be charged in Jan. 6 cases going forward.

"That official proceeding plainly used certain records, documents, or objects—including, among others, those relating to the electoral votes themselves," Jackson wrote.

The Chilcoats were scheduled to begin a jury trial before Kollar-Kotelly on Oct. 4, although it was unclear whether that date would hold. On Monday, the Chilcoats’ attorneys, Joseph McBride and Bradford Geyer, filed a motion to withdraw from the case. In the motion, McBride and Geyer said the attorney-client relationship had “irretrievably broken down and the defendants appear to have fired them.” The filing noted, without expressly saying it was the cause of the apparent breakdown, that McBride and Geyer had made clear to the Chilcoats they would not put on a “Sovereign-Citizen defense.”

In an order Monday, Kollar-Kotelly said she had received filings from Shawndale Chilcoat referring to McBride and Geyer as “my former attorneys.” She set a status hearing on Aug. 29 to determine whether the Chilcoats intended to seek new attorneys, have attorneys appointed to them or represent themselves at trial.