A federal appeals court sided Friday with the Justice Department in a case that could have upended hundreds of charges brought in the Capitol riot investigation.
The decision, however, leaves open the possibility of further challenges to the charge of obstruction of Congress, which has been brought against more than 300 defendants in the massive federal prosecutions following the Jan. 6, 2021, riot.
In a 2-1 ruling, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit said a lower court judge was wrong in dismissing the charge in three cases in which the judge concluded it didn’t cover the defendants’ conduct. Those defendants may ask the full appeals court or the U.S. Supreme Court to review the decision.
The charge of obstruction of an official proceeding, which carries up to 20 years behind bars, is among the most widely used felony charges in the Jan. 6 cases. It has been brought against extremists accused of plotting to stop the transfer of presidential power from Republican Donald Trump to Democrat Joe Biden as well as in dozens of less serious cases.
Dozens of people have already pleaded guilty to the charge or been convicted at trial.
The Justice Department has argued that the offense — punishing anyone who “corruptly” obstructs or impedes an “official proceeding” — clearly fits the conduct of the rioters who halted Congress’ certification of Biden’s 2020 election victory.
But U.S. District Judge Carl Nichols found that prosecutors stretched the law beyond its scope to inappropriately apply it in the these cases. Nichols ruled that a defendant must have taken “some action with respect to a document, record or other object” in order to obstruct an official proceeding under the law.
The Justice Department appealed, arguing that Nichols’ interpretation of the law was too limited.
In her appeals court ruling, Judge Florence Pan noted that Nichols — an appointee of Trump — was the only lower court judge overseeing Jan. 6 cases to rule that way; every other judge who considered it said that it was correctly used.
“Although the opinions of those district judges are not binding on us, the near unanimity of the rulings is striking, as well as the thorough and persuasive reasoning in the decision,” wrote Pan, who was appointed by Biden.
Circuit Appeals Judge Gregory Katsas, however, sided with Nichols, writing that prosecutors’ interpretation of the law was overly broad, especially for a crime that carries such a long potential sentence.
The law has been on the books for two decades and used thousands of times, but until the Jan. 6 prosecutions it had been used only against people accused of damaging or impairing evidence, the Trump appointee wrote.
If the charge covers anything that “obstructs, influences, or impedes an official proceeding,” it could also potentially criminalize other common ways that people try to convince lawmakers of their point of view, including advocacy, lobbying or protesting, he wrote.
“So while this approach would create an escape hatch for those who influence an official proceeding without committing any other crime, it also would supercharge a range of minor advocacy, lobbying, and protest offenses into 20-year felonies,” Katsas wrote.
The appeals court’s ruling suggests more legal wrangling over the law is likely. While he sided with Pan in reversing Nichols’ decision, Judge Justin Walker said the court was wrong to not address what the law means by “corruptly.”
Walker, another Trump appointee, said “corruptly” means defendants are guilty only if they act to “procure an unlawful benefit” for themselves or someone else. He used the example of a rioter who joined the riot because “he was angry at the nation’s elites” and saw it as an “opportunity to display his bravado.”
“Though likely guilty of other crimes, he did not act ‘corruptly’” under the law ”because he did not intend to procure a benefit by obstructing the Electoral College vote count,” he wrote.
“That rioter may not be representative of most rioters on January 6th. But in every case, the Government will need to prove at trial whether each defendant acted ‘corruptly’ in a way that my hypothetical rioter did not,” he wrote.
Roughly 1,000 people have been charged with federal crimes in the attack in which rioters shattered windows, fought with police and poured into the Capitol, sending lawmakers into hiding and leaving dozens of police officers injured.
More than 600 of them have pleaded guilty or been convicted after trials decided by a jury or judge. Roughly 450 have been sentenced, with over half getting terms of imprisonment ranging from seven days to 10 years.
Richer reported from Boston.
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