Judge green-lights federal prosecutors’ use of ‘obstructing Congress’ charges in Jan. 6 insurrection

Judge green-lights federal prosecutors’ use of ‘obstructing Congress’ charges in Jan. 6 insurrection
Police outside the U.S. Capitol Building on January 6, 2021, Wikimedia Commons

The wheels of justice turn slowly enough as it is, and when it comes to complex cases like the Jan. 6 insurrectionist prosecutions, the pace can be positively glacial, especially because evidence is still being gathered—and arrests are still being made—nearly a year later. Moreover, because the first cases to be processed in the courts were largely simple charges for lesser offenses, the overwhelming impression so far has been that the Justice Department is not taking the matter seriously enough, undercharging defendants and dragging its feet—which in turn has produced some serious criticism from the federal bench.

But there are signs that the logjam in the courts is about to ease up. A benchmark ruling this week by one of these federal judges essentially gives prosecutors the green light to proceed with their primary strategy—namely, to prosecute most of the defendants for obstructing Congress, a charge that defense lawyers have tried to argue does not fit the crime. It could have far-reaching implications—even for high-powered players like Mark Meadows.

On Friday, District Judge Dabney Friedrich ruled against the effort by two defendants to have their “obstruction of an official proceeding” charges dismissed. The insurrectionists argued that the certification of the counting of Electoral College ballots in the 2020 election was not an “official proceeding” under the law, which in the past had primarily been used to prosecute witness tampering and evidentiary malfeasance.

Of course, no previous prosecutor has been confronted with an orchestrated mob assault on the Capitol, either. And Judge Friedrich—a Donald Trump appointee—had little trouble discerning that the Joint Session of Congress that was interrupted by the attack was, indeed, an “official proceeding” under the law. “In sum,” Friedrich concluded, “because the government has alleged that the defendants acted corruptly, or unlawfully, and with the intent to obstruct, as defined in § 1512(c)(2), the defendants were on notice that their conduct violated the statute and ‘no more is required’ at this stage of the prosecution.”

Several other defendants—notably Proud Boys leaders Ethan Nordean and Joe Biggs—have made similar arguments before different judges. It’s not clear whether these other judges will follow Friedrich’s ruling or logic, but as Marcy Wheeler observes, the trend in the courts is not going their way.

Prosecutors in the Jan. 6 cases have relied heavily on the obstructing-Congress charge, as Wheeler has also explained, in large part because it carries the same potential sentence—up to 20 years of hard time—and terrorism enhancement as a seditionist-conspiracy charge would. The difference is that the latter charge requires a higher level of evidence regarding defendants’ motives, which makes prosecuting it a more fraught proposition for many (if not most) of the Jan. 6 insurrectionists.

That’s not to say that there won’t be such seditionist-conspiracy charges filed in the attack on Congress. Wheeler notes that Nordean may yet face them, depending on what investigators have uncovered. And there is no small likelihood that they also await key figures who have not yet been charged in the insurrection conspiracy, particularly Oath Keepers founder Stewart Rhodes.

Another major figure who could wind up facing very similar charges is Trump’s chief of staff, Mark Meadows. The Jan. 6 Committee on Sunday produced a bill of goods practically indicting Meadows for his role in the insurrection, including his “email to an individual about the events on January 6” saying the National Guard would be present to ‘‘protect pro Trump people’’—information that we know from court evidence was part of Proud Boys’ internal discussions that day. As Wheeler observes, it’s possible he shared information that was central to the expectations of and plans by the militia that organized the assault.

In general, the outcomes for key participants in the insurrection—such as Jacob “QAnon Shaman” Chansley—have not been encouraging for the defendants; sentences, indeed, are becoming harsher the farther down the roster the court calendar proceeds, as cases involving increasingly violent criminal behavior come bubbling upward.

A recent CNN analysis noted that fewer than half the 50 defendants sentenced so far have faced jail time. And it observes that judges so far have been largely split about the harshness of the sentences these defendants have deserved, and it’s not necessarily a partisan split.

"It doesn't look great that we're taking a bunch of people who stormed the United States Capitol and letting them go home. Not a lot of people are spending a lot of time in jail," an anonymous Justice Department prosecutor told CNN. "But jail isn't always the best outcome. A lot of them are getting significant terms of supervised release and probation, so they've got to keep their nose clean."

That dynamic is likely to change as the more serious cases come before the bench—and as more significant players in the Jan. 6 drama are charged with crimes for their participation in the attack on Congress. Especially if smirking scofflaws like Mark Meadows are among them.

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