Appeals court struggles with Jan. 6 obstruction of Congress charges

Appeals court judges wrestled Monday with a challenge to a key felony charge prosecutors have wielded against hundreds of Jan. 6 defendants, weighing an issue that could upend hundreds of prosecutions connected to the attack on the Capitol.

The judges recoiled at a defense attorney’s comparisons between those who took part in the riot linked to the 2020 presidential election and others who’ve engaged in protest or legal action to advance political goals.

“You don’t think this is unprecedented?” D.C. Circuit Court of Appeals Judge Justin Walker asked defense lawyer Nicholas Smith during an hour-and-15-minute-long argument session at the same federal courthouse where trials for Jan. 6 suspects have been underway over the past eight months.

Smith drew the ire of Walker, an appointee of former President Donald Trump, for what the judge said was a suggestion that those charged in the storming of the Capitol were on par with the wave of prominent lawyers and activists who traveled to Florida to take part in the legal melee that erupted after the 2000 presidential election.

“If we were to extend the obstruction-of-justice laws to ballot counting, the implications are vast and very volatile,” Smith argued.

The appeals panel’s ruling has extraordinary implications for hundreds of felony cases arising from the Jan. 6 attack on the Capitol. Prosecutors have charged nearly 300 defendants — of about 900 overall — with obstructing Congress’ Jan. 6 proceeding to count Electoral College votes. It also could have ramifications for the recent convictions of several leaders of the Oath Keepers for obstructing the Jan. 6 session, and for Trump himself, who is facing scrutiny from lawmakers and prosecutors for his involvement in disrupting the Jan. 6 proceedings.

Smith, who represents a slew of Jan. 6 defendants facing obstruction charges, repeatedly compared the Jan. 6 events to more routine protests on Capitol Hill, such as disturbances at confirmation hearings and outbursts in the Congressional galleries. But he drew his sharpest reaction when he seemed to draw a parallel between the Jan. 6 riot to teams of activists and lawyers who traveled to Florida after the 2000 election to intervene in the process.

Some of those who took part in the legal campaign to have George W. Bush declared the winner in Florida now occupy very high positions in the judicial system. They include three Supreme Court justices. One of them is Justice Brett Kavanaugh, for whom Walker clerked.

“The teams of lawyers that went down to Florida, that you analogized to Jan. 6 rioters today, they didn’t say a civil war should start. They didn’t use a grappling hook and a rope. … They didn’t say a Democratic congressman should be taken to the gallows. … They didn’t punch and kick officers,” Walker continued, describing some of Smith’s clients. “I think you would have to concede that this has nothing to do with the protester outside the Capitol with a sign.”

“You’re not comparing like and like,” Walker complained.

Smith insisted that he wasn’t comparing the conduct of lawyers in the Florida recount to those who swarmed Congress on Jan. 6, 2021, but he said the government’s arguments would allow serious obstruction charges in that context. Not all of those who traveled to Florida in 2020 did so to form or present legal arguments. During events known as the Brooks Brothers Riot, some GOP activists swamped vote-counting sites with disorderly observers intent on halting the process.

Most of the federal district court judges in Washington, D.C., have sided with prosecutors’ interpretation of the obstruction law. But one, U.S. District Court Judge Carl Nichols, ruled that defendants in the Jan. 6 cases can only be charged with obstruction if prosecutors can show the defendants’ actions targeted documents like the records of cast electoral votes that were hustled from the Senate chamber that day as the demonstrators swarmed the building.

The legal provision used to charge Jan. 6 defendants with obstruction was added to federal law in 2002 by Congress at a time when lawmakers sought to tighten federal obstruction statute because of a Supreme Court ruling that limited its application in a case related to the Enron collapse.

Judge Greg Katsas noted that when Congress added the provision at issue two decades ago, it did so under a heading that referred to “corporate fraud.”

“The offense you’re charging here is reprehensible conduct on many levels, but it is not corporate fraud,” observed Katsas, also a Trump appointee.

Walker and Judge Florence Pan repeatedly emphasized that the Jan. 6 riot was a mass crime that defies comparison, which resulted in prosecutors using existing laws to bring charges in unprecedented ways.

Despite the effusive denunciations all three judges made of the Jan. 6 defendants, it was not clear whether Katsas and Walker were intent on rejecting Nichols’ reading of the statute or the defendants’ legal arguments that the best reading of the law doesn’t cover a general intent to halt Congress’ tabulation of electoral votes on Jan. 6, 2021.

Smith argued that the government’s expansive reading of the obstruction law leaves little to set protesters who violate the law against parading or picketing in the Capitol apart from those who are guilty of obstructing a congressional proceeding, which is categorized with obstruction of justice crimes that carry a maximum punishment of 20 years in prison.

“Under the government’s reading, there’s no distinction between that Class B misdemeanor and a 20-year felony,” Smith said. “It’s turbocharging the sentencing guidelines for that offense.”

“Isn’t that where prosecutorial discretion comes in?” asked Pan, an appointee of President Joe Biden.

Justice Department lawyer James Pearce said some of Smith’s concerns about the obstruction statute being used to prosecute ordinary protests on Capitol Hill are addressed by a requirement in the law that prosecutors seeking to prove an obstruction charge show that a defendant acted “corruptly.”

“It is perfectly OK to advocate that members of Congress … not certify the election through the Electoral Count Act’s process,” Pearce said, adding that the government’s definition of obstruction “ensures that what they are doing is in fact corrupt or wrongful and places a limitation on their conduct.”

During the arguments Monday, Pan sparred repeatedly with Smith and seemed most hostile to the notion of taking a narrow interpretation of the obstruction statute. However, she also said the court really had not delved in depth into what definition of ”corruptly” should apply, and the judges might need additional briefing from the parties on that issue if it’s critical to resolving the appeals.

Smith said the appeals court should read the law to cover congressional investigations and evidence tampering, but not other congressional proceedings.

“If we’re outside the lane of evidence and investigations, we’re floating in space,” the defense lawyer said.

Several prosecutors who have handled trials for Jan. 6 defendants were watching intently from the gallery during the D.C. Circuit arguments, as was at least one FBI agent.