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DOJ Moves to Dismiss Case Against January 6 Protestor — It Always Begins With a Trickle

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On Tuesday, the Department of Justice filed a motion to dismiss the criminal complaint filed against defendant Christopher Kelly on January 20, 2021. Kelly was charged in connection with the January 6 protests on Capitol Hill.

There are several issues worth commenting on here.

First, Kelly has never been indicted by a grand jury even though there have been grand jury indictments handed down as soon as the week following the protests.

Kelly was charged by way of a criminal complaint obtained by the FBI, relying on an affidavit filed by Special Agent Michael Andretta, and signed by U.S. Magistrate Judge Zia Faruqui on January 20. He was arrested and made his initial appearance on February 9.

Under Federal Rule of Criminal Procedure 5.1, a defendant must be indicted within 14 days of making an initial appearance following an arrest on a criminal complaint if the defendant is held in custody. The period is extended to 21 days if the defendant is released on bond. If an indictment is not obtained in that time, the defendant is entitled to a preliminary hearing where a Magistrate determines after the presentation of evidence by the government whether there is probable cause that the defendant has committed a federal crime.

This 14/21 day period can be extended, but only with the consent of the defendant.  It has been 110 days since Kelly made his initial appearance so the failure to seek an indictment has been a function of Kelly’s willingness to extend the time period under the rule while his attorney worked to convince the prosecution to not take his case to the grand jury. The tactic seems to have paid off.

The complaint charged Kelly with the same basic charges which DOJ employed against most of the January 6 protesters — obstruction of a congressional proceeding; unlawful entry into a restricted government building; and violent entry or disorderly conduct.

Last week, I wrote about some potential legal and factual problems that the DOJ is likely encountering with regard to each of these charges. The first charge may be undermined by the

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