Attorneys for ICED EARTH guitarist Jon Schaffer have asked for a delay in sentencing in connection with his role in the January 6, 2021 U.S. Capitol riot.
Last August, a judge set a February 20, 2024 sentencing date for Schaffer, who had previously “acknowledged he is a founding lifetime member” of the right-wing Oath Keepers extremist group. But on January 26, the 55-year-old musician’s lawyers filed a “motion to continue sentencing or in the alternative stay sentencing”, in part pending the outcome of the case Joseph W. Fischer v. United States, which the Supreme Court agreed to hear in December. According to Politico, at issue is whether prosecutors and the Department of Justice have been improperly using a 2002 law originally aimed at curbing financial crimes to prosecute a January 6 defendant named Joseph Fischer. Should the court side with Fischer, it would also call into question the use of the law against other January 6 defendants — including Schaffer.
In the Supreme Court case, the only provision of the federal criminal code at issue is 18 U.S.C. 1512(c)(2),which criminalizes any effort to “corruptly” obstruct, influence or impede any official proceeding. Conviction can result in a prison sentence of up to 20 years.
According to NBC News, the provision was enacted in 2002 as part of the Sarbanes-Oxley Act, a bill passed in the aftermath of the Enron accounting scandal. As such, defendants say it was never intended to apply to an incident such as January 6.
“The question before the Supreme Court directly relates to and impacts the validity of Mr. Schaffer‘s plea and conviction, and drives the government’s calculation as to his sentencing guideline range,” Jon‘s attorneys wrote in their motion. “If Mr. Schaffer is sentenced to a term of incarceration under 18 U.S.C. § 1512(c) and the obstruction guidelines, and begins serving his sentence, he will be irreparably harmed as he would lose his gainful employment, uproot his life, and serve time for a felony that may be invalidated by the Fischer outcome. Furthermore, a continuance or stay would also preserve valuable government resources and avoid potential post-conviction relief matters, if the Supreme Court rules in favor of Fischer.”
In January 2022, U.S. District Court Judge Amit Mehta granted the U.S. government’s request to share sealed materials from the case involving Schaffer‘s role in the U.S. Capitol riot case as discovery to the three main Oath Keepers cases.
In May 2023, Mehta handed down an 18-year prison sentence for the leader of the Oath Keepers, Stewart Rhodes, for his efforts to overturn the 2020 election that ended with the violent attack on the U.S. Capitol.
As part of his April 2021 plea deal, Jon entered into a cooperation agreement with the government.
According to CNN, prosecutors and Schaffer‘s attorneys agreed to recommend that he get between three and a half and four and a half years in prison, based on how fruitful his cooperation was with the government.
The government agreed not to oppose Schaffer‘s release during the sentencing phase.
Although Schaffer was initially charged with six crimes, including engaging in an act of physical violence and targeting police with bear spray, he pleaded guilty to only two charges: obstruction of an official proceeding of Congress; and trespassing on restricted grounds of the Capitol while armed with a deadly or dangerous weapon. The first charge is punishable by up to 20 years in prison, while the second carries up to a 10-year prison term.
In his plea agreement, Schaffer acknowledged that on January 6, 2021 he was in Washington to attend the “Stop The Steal” rally at the Ellipse in Washington, D.C. to protest the results of the presidential election, which he believed were fraudulent. Schaffer wore a tactical vest and carried bear spray, a dangerous weapon and chemical irritant used to ward off bears. When the rally finished, Schaffer joined a large crowd that marched from the Ellipse to the Capitol, where a joint session of Congress, presided over by Vice President Michael Pence, was in session to certify the electoral college vote results. Shortly after 2:00 p.m., members of the mob forced entry into the Capitol building, disrupting the joint session and causing members of Congress and the Vice President to be evacuated from the House and Senate chambers.
In his plea agreement, Schaffer admitted that after arriving on Capitol grounds, he walked past barriers intended to restrict access to the public and to a set of locked doors on the Capitol’s west side. At approximately 2:40 p.m., Schaffer positioned himself at the front of a crowd that broke open a set of doors being guarded by four U.S. Capitol Police (USCP) officers wearing riot gear. Schaffer admitted to being among the first individuals to push past the damaged doors and into the Capitol building, forcing officers to retreat. Schaffer and others advanced toward five or six backpedaling USCP officers while members of the mob swelled inside of the Capitol and overwhelmed the officers. The officers ultimately deployed a chemical irritant to disperse the mob. Schaffer was among the people who were sprayed in the face, after which he exited while holding his own bear spray in his hands.
As part of the plea deal, Schaffer agreed to cooperate with investigators and potentially testify in related criminal cases, according to CNN. In return for Schaffer‘s assistance, the Justice Department might later urge the judge to show leniency during his sentencing.
Also as part of the agreement, the Justice Department has offered to sponsor Schaffer for the witness protection program.
The 55-year-old musician was the first Capitol riot defendant to reach a plea deal.
The Indiana chapter of the Oath Keepers distanced itself from Schaffer after his arrest, claiming he was not a member of the local group. But the national organization, which sold lifetime memberships for $1,200, had not commented on his alleged affiliation with the group.
At a November 2020 Donald Trump rally in Washington, D.C., Schaffer was videotaped walking behind a Florida couple, Kelly Meggs and Connie Meggs, who were accused of being among 10 members of the Oath Keepers to have played a leading role in the Capitol assault. In May 2023, Kelly Meggs was convicted of seditious conspiracy for his participation in the January 6, 2021 attack on the Capitol and was sentenced to spend 12 years in prison.
Following the initial reports that Schaffer was involved in the riot, his ICED EARTH bandmates distanced themselves from his actions. Singer Stu Block and bassist Luke Appleton later posted separate statements on social media announcing their resignations. BLIND GUARDIAN frontman Hansi Kürsch also quit DEMONS & WIZARDS, his long-running project with Schaffer. The allegations also apparently affected Schaffer‘s relationship with his longtime record label Century Media, which had released albums from both ICED EARTH and DEMONS & WIZARDS. As of mid-January 2021, the Century Media artist roster page did not list either band.
Trouble in paradise?
Over 3 years after his arrest, Jon Schaffer is asking for a delay in sentencing, in part to wait out SCOTUS on Fischer. It is not a request to which prosecutors consented.
— emptywheel (@emptywheel) January 23, 2024