Federal judges are weighing legal challenges to one of the leading felony charges that government lawyers have brought in Capitol riot cases, potentially setting the stage for protracted legal battles over the Justice Department’s prosecutorial strategy in the wake of Jan. 6.
In several cases, defendants have moved to throw out the obstruction of an official proceeding charge, which carries a maximum possible sentence of 20 years in prison, arguing that the statute is unconstitutionally vague and the Jan. 6 certification of the Electoral College results does not qualify under the law as an “official proceeding.”
At least three judges in recent weeks have pressed prosecutors on whether the charge is appropriate in the context of the riot. If courts rule that the felony count cannot be applied to Jan. 6 defendants or that the law is unconstitutional, it would deal a blow to prosecutors’ efforts to crack down on those who overran the Capitol.
Some federal judges overseeing the prosecutions have expressed concerns about the application of the law in the context of the Capitol riot and whether that could potentially prove problematic when applied to other circumstances.
D.C. District Judge Amit Mehta said at a hearing earlier this month that he was concerned about how prosecutors might wield the charge if it’s not subject to limitations.
“Essentially, what you said is ‘Trust us,’ ” said Mehta, who was appointed by former President Obama. “And that is a real problem when it comes to criminal statutes to suggest that, ‘We know it when we see it, and we’ll pick and choose when we think it’s an appropriate exercise of prosecutorial discretion.’ ”
The U.S. attorney’s office in D.C. has charged more than 200 people with the obstruction count following the riot, making it the lead felony charge that prosecutors have wielded against those who they consider to be the more egregious offenders, including members of the Proud Boys and Oath Keepers who are facing major conspiracy cases.
Enacted in the fallout of the Enron scandal as part of the Sarbanes-Oxley Act intended to counter corporate fraud, the statute prohibits anyone from “corruptly” obstructing official proceedings.
There is little precedent of the charge being applied in circumstances similar to the Capitol riot, and some of the defendants are arguing that the Justice Department is misusing it.
Lawyers for the defendants have argued that Congress intended the criminal statute to protect judicial and quasi-judicial proceedings, like court cases and certain government investigations or inquiries.
In a court filing submitted in June, an attorney for a member of the Oath Keepers charged with the count argued that the law would apply to some of Congress’s official business but not a “purely ministerial, legislative vote-counting event like the Electoral College certification.”
In a hearing on Tuesday in a case involving multiple Proud Boy members facing the obstruction charge, federal prosecutor James Pearce argued that defining what constitutes an official proceeding does not require any overthinking.
“There might be some hard questions at the outer boundaries of what would qualify as a proceeding before the Congress,” Pearce said. “But when you’re talking about something where you’ve got a presiding official gaveling in a session, you’ve got the full both the Senate and the House of Representatives there, our position is that’s a proceeding before the Congress. Full stop. And there’s really no need to go any further than that.”
Judges have also questioned how to interpret the law’s use of the word “corruptly,” expressing concern that the use of the term would fall into a category that the Supreme Court has deemed unconstitutionally vague.
Carmen Hernandez, an attorney for Donovan Crowl, one of the defendants in the Oath Keepers conspiracy case, argued that the government’s interpretation of the law would pose First Amendment concerns and potentially criminalize protests that would otherwise be legal, or at least not subject to a criminal offense that carries a 20-year sentence.
“It has a chilling effect on all of us,” Hernandez wrote in a court filing earlier this month. “Today, this novel application of [the law] threatens Mr. Crowl with decades in a federal prison for nonviolent political conduct. Last year, President Trump threatened years of prison for Americans who protested incidents of police brutality and those who sought to bring down statutes of slave owners and confederate generals. In coming years, environmental activists, those seeking to protect women’s reproductive rights, or those advocating for the preservation of voting rights may be threatened with the same severe penalties, if they too use non-violent means to petition Congress.”
It’s unclear how the judges might rule on the challenges to the obstruction charges. But with multiple motions pending before various judges, the matter is likely to wind up on appeal, where it could take months or years to resolve.
Christopher Macchiaroli, a former federal prosecutor for more than a decade, including a stint at the U.S. attorney’s office in D.C., said that the legal fight will have a ripple effect across the hundreds of Justice Department prosecutions related to the riot. If the fight drags on, Macchiaroli said, it could put a hold on other cases, including ones where defendants have already pleaded guilty to the obstruction charge, or intend to.
“It’s going to be a mess,” said Macchiaroli, now a criminal defense lawyer who helped represent two defendants who have pleaded guilty to charges related to the Capitol riot.
He added that federal prosecutors have opened themselves up to the risk of losing a major early legal battle in the riot cases by employing a novel use of a criminal statute that is open to interpretation.
“You’re overextending yourself,” Macchiaroli said of the Justice Department, “and you’re overextending yourself to increase penalties or to use as leverage to get people to plead, and you end up with circumstances like this.”