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The Justice Department Is Dropping A Capitol Riot Prosecution For The First Time

The US attorney’s office in Washington didn’t explain why it was dismissing the charges against Christopher Kelly of New York.

Posted on June 1, 2021, at 3:10 p.m. ET

US Department of Justice

Photo of Christopher Kelly outside the US Capitol on Jan. 6 included in his charging papers

WASHINGTON — Federal prosecutors disclosed Tuesday that for the first time they’re dropping one of the 450-plus cases filed against people accused of descending on the US Capitol on Jan. 6.

Christopher Kelly of New York was arrested two weeks after the insurrection and charged with obstruction of an official proceeding, which is a felony crime, and several misdemeanor counts for illegally entering the Capitol. More than four months later, a prosecutor notified the judge in Kelly’s case that the government wanted to withdraw the charges; they didn’t offer details about why, only saying that it “serves the interests of justice.”

“The government and defense counsel have discussed the merits of the case, and upon reflection of the facts currently known to the government, the government believes that dismissal without prejudice at this time serves the interests of justice,” Assistant US Attorney Tejpal Chawla wrote.

Kelly’s lawyer Edward MacMahon Jr. and a spokesperson for the US attorney’s office did not immediately return requests for comment.

Kelly was allowed to go home while his case was pending. In April and then again in May, the government asked the judge to extend deadlines in Kelly’s case; in the May request, the prosecutor said they had engaged in “substantial plea discussions” with Kelly’s attorney. A dismissal without prejudice means the government could bring charges against Kelly again in the future. The parties are due in court tomorrow to update the judge on the status of his case; the judge will have to approve the government’s request to dismiss it.

While Kelly’s is the first case the Justice Department has dropped outright, more cases could be headed for a conclusion soon as prosecutors negotiate plea agreements with other alleged rioters. Only one case has ended with a deal so far; Jon Schaffer of Indiana pleaded guilty in April and agreed to cooperate with investigators. But prosecutors have been extending other offers in recent weeks and at least one defendant, Paul Hodgkins of Florida, is scheduled for a plea hearing this week.

A small number of defendants have asked judges to dismiss the charges filed against them on the grounds that they’re legally defective, or are arguing to move their cases out of Washington, claiming the city’s jury pool is tainted by anti-Trump bias and “cancel culture.”

According to the charging papers in Kelly’s case, an unnamed confidential source had provided information about Kelly from his Facebook account three days after the Capitol insurrection. The FBI agent who signed his arrest affidavit said they’d matched the profile photo from Kelly’s Facebook account with his New York driver’s license photo.

The source gave the FBI a screenshot of a Facebook group chat from Jan. 6 where someone named “Chris,” whom the bureau believed to be Kelly, wrote, “We’re in!” Another person replied telling him to be safe, and then “Chris” sent a photo of what appeared to be the inside of the Capitol. A federal magistrate judge signed a search warrant for Kelly’s Facebook account, and the FBI affidavit quoted other messages Kelly allegedly sent via the platform that suggested he was inside the Capitol during the riots; in one exchange dated Jan. 6, someone asked, “Are you inside?” and Kelly replied, “Sure spread the word, Taking this back by force now, no more bs.”

“We're inside! Hearing stopped, sending everyone to the basement,” Kelly allegedly messaged another person via Facebook at 2:36 p.m., presumably referring to members of Congress stopping their certification of the election results and evacuating.

Kelly also sent messages before Jan. 6 talking about his plans to go to Washington, according to the government, including one where he referenced traveling with “ex NYPD and some proud boys”; the FBI affidavit noted that Kelly’s brother is a retired New York police officer. The FBI also found photos that Kelly sent via Facebook that appeared to show him standing with an American flag outside the Capitol. In one photo he is wearing a sweatshirt; in another he is shirtless.

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.

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