The government’s case against many, if not most, of the January 6 defendants is in legal peril.
Over 650 people have been criminally charged in connection with the riot at the Capitol on Jan. 6. The main charge against hundreds of these defendants is felony “obstruction” under 18 U.S.C. § 1512(c)(2).
That statute provides:
“Whoever corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”
Most of the other charges against the Jan. 6 defendants involve misdemeanors sounding in trespass, vandalism and disorderly conduct for which the maximum sentence is one year imprisonment, thus making the obstruction charge the most serious by far.
Yet the Biden Department of Justice, in its facts-and-law-be-damned fervor to nail those on the political right to the wall, once again seemed to have overplayed its hand.
The obstruction charge on which the government is relying so heavily may, in fact, be unconstitutional as applied to the Jan. 6 defendants.
To understand why this is so, one need only look to the case of Donovan Crowl. Crowl, who according to papers filed by his attorney is a 50 year-old Marine veteran from Ohio with no prior criminal convictions, attended the Jan. 6 Stop the Steal Rally at The Ellipse in Washington D.C..
Thereafter, Crowl and others made their way to the Capitol. According to the indictment against him, this group aligned in a “stack” formation and marched single file, each “keeping at least one hand on the shoulder of the other in front of them,” up the east side stairs of the Capitol. At approximately 2:40 p.m., says Crowl’s lawyer, Crowl and the others in his “stack” passed through the Capitol doors that were already open and entered the Rotunda.
At 3:05 p.m. – just 20 minutes later – Crowl exited the building. The others in Crowl’s “stack” had either left the Capitol contemporaneously with him or earlier.
Crowl did not destroy property, injure anyone or threaten to do so. He is not accused of possessing any weapons or of stealing documents or other items belonging to members of Congress.
Crowl and 16 others eventually were arrested and charged on a singular indictment.
Counts One and Two of the indictment charged all of the defendants with “corruptly obstruct[ing]” the certification of the Electoral Vote in violation of 18 U.S.C. § 1512(c)(2), and conspiring with others to do so (Crowl also was charged with two misdemeanors – trespass and aiding and abetting the destruction of government property.)
Notably, the Joint Session of Congress on Jan. 6 had been suspended at 2:29 p.m. that day – 11 minutes before Crowl and the others entered the Capitol – and it did not resume until 9:02 p.m. that evening.
Nevertheless, the indictment alleges that the defendants’ entrance into the Capitol and presence there for no more than 20 minutes after Congress had recessed obstructed the Congressional proceeding in violation of §1512(c)(2).
Crowl’s lawyer recently filed a motion to dismiss the obstruction charge. In it, she argued that it was factually impossible for Crowl to have obstructed a Congressional proceeding that was already over at the time Crowl engaged in the conduct charged in the indictment.
But she also raised an important legal argument: that the obstruction statute relied on by the government is unconstitutional as applied to most of the Jan. 6 defendants because it did not put them on notice that a brief trespass into the Capitol while participating in a political rally could subject them to a 20-year prison sentence.
The Due Process Clause of the Fifth Amendment provides that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.” The Supreme Court has made clear that this guarantee is violated when the government “tak[es] away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.”
Without such guidelines, explained the high court, a criminal statute would permit “a standardless sweep” that would “allow policemen, prosecutors, and juries to pursue their personal predilections.”
How dangerous that would be in the hands of a vengeful DOJ.
But that’s exactly where we find ourselves. The Biden Administration has used an ambiguously worded criminal statute to crush President Trump’s supporters – and along with them their families and their livelihoods.
Just as Shakespeare said “what’s past is prologue,” insight into the legal issue here can be found by looking back four decades to a case that arose out of the Iran/Contra Affair.
In 1986, President Reagan’s then-National Security Advisor, John Poindexter, sent letters to the chairmen of two House committees falsely stating that the National Security Council staff had not violated federal law by providing military support to the rebel “Contras” then attempting to overthrow the “Sandinista” government of Nicaragua.
Poindexter also arranged a meeting between National Security Council staff member Oliver North and Members of the House Intelligence Committee, at which North denied giving military advice and fund-raising aid to the Contras, when in fact he had.
Thereafter, the Independent Counsel who had been appointed to investigate the Iran/Contra Affair secured a five-count indictment against Poindexter. Two of those counts charged Poindexter with violating 18 U.S.C. § 1505 on the ground that he “corruptly obstructed” Congress by making false and misleading statements to Members of the Congress.
At the time, that obstruction statute provided, in relevant part:
“Whoever corruptly … influences, obstructs, or impedes … the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress shall be fined not more than $ 5,000 or imprisoned not more than five years, or both.”
Poindexter was convicted of these and other charges at trial. In his subsequent appeal, Poindexter argued that the inclusion of the word “corruptly” in the obstruction statute rendered it unconstitutionally vague.
The D.C. Circuit agreed, holding that the term “corruptly” was an “almost boundless” term that that was “too vague to provide constitutionally adequate notice that it prohibit[ed] lying to the Congress.”
Given the facial vagueness of the word “corruptly,” the court engaged in a thorough review of both the legislative history of the statute and of judicial interpretations of it to see if either provided a narrower definition of “corruptly” that was “clear[ ] enough to have put a reasonable person on notice” of it.
The D.C. Circuit found that “neither the legislative history nor the prior judicial interpretation of [the statute] supplie[d] the constitutionally required notice that the statute on its face lack[ed].”
It therefore determined that the statute was unconstitutionally vague as applied to Poindexter’s conduct.
The statutory provision that the Poindexter Court found too vague to pass constitutional muster is materially identical to the language in § 1512(c)(2) with which many of the Jan. 6 defendants are charged.
As Crowl’s attorney aptly stated in her motion to dismiss, “nothing in § 1512(c)(2) would have given fair notice to … any person of common intelligence, that if he entered the United States Capitol for a short time, without injuring anyone or damaging any property while associated with others seeking to petition the Congress his conduct would run afoul of 18 U.S.C. § 1512(c)(2) and subject him to imprisonment for a term of 20 years.”
Nor did the legislative history of the statute or prior court decisions interpreting it put any reasonable person on notice, either.
Congress intended § 1512(c) – which was enacted as part of the Sarbanes-Oxley Act of 2002 – to broaden punishment for document destruction. As the Supreme Court explained in Yates v. United States, this was prompted by revelations of Enron’s massive accounting fraud and of the fact that the company’s outside auditor, Arthur Andersen LLP, “had systematically destroyed potentially incriminating documents.”
There is nothing in the legislative history that supports the notion that Congress enacted § 1512(c)(2) to criminalize the disruption of a Congressional proceeding by persons engaged in a political rally.
This conclusion is reinforced when § 1512(c)(2) is read in context with other federal criminal statutes. For instance, 18 U.S.C. § 1505 prohibits using threats or force to “obstruct” a “pending proceeding” before a federal “department or agency” or an “investigation” being conducted by Congress. Had Congress wanted to criminalize protests at the Capitol designed to interfere with all Congressional proceedings, not just investigations, it easily could have expanded § 1505 to say so.
And, 18 U.S.C. § 1507 forbids “picketing or parading” near a federal courthouse with the “intent of “obstructing … the administration of justice.” Had Congress wanted to ban picketing at the Capitol, it could have extended the reach of Section 1507 beyond federal courthouses.
By doing neither of these things, Congress made clear its intention to not criminalize as obstruction brief trespasses into the Capitol as part of a political demonstration.
Past court rulings also undercut the government’s use of 18 U.S.C. § 1512(c)(2) against those who participated in the events at the Capitol on Jan. 6.
While that statute prohibits individuals from “corruptly obstructing” official proceedings, courts have interpreted those terms to include making false statements (see here, here, here and here), encouraging others to do so (here and here), falsifying documents, destroying evidence, thwarting a criminal investigation, or intimidating witnesses in a criminal proceeding.
None of these things happened on Jan. 6.
Further, demonstrators often disrupt congressional proceedings. Here are some examples:
The use of § 1512(c)(2) to prosecute demonstrators is novel. Other than the Jan. 6 cases, no reported cases prosecuted under § 1512(c)(2) since its passage in 2002 have involved a claim that demonstrations that disrupted an official proceeding committed an obstruction offense under § 1512(c)(2).
Recall that hundreds of protestors “broke through Capitol Police barricades” before “storming” the Capitol Building during the Justice Kavanaugh confirmation hearings. Despite the fact that Congress was disrupted when the protestors invaded the Capitol Building in the middle of the Justice’s confirmation hearings, these arrestees were not charged with 20-year obstruction offenses under § 1512(c)(2), but with misdemeanors under D.C. Code §22-1307.
In the Jan. 6 cases, the Biden Administration and its media allies have persisted in pushing a calumny that the defendants all participated in an organized conspiracy of bloodthirsty insurrectionists whose purpose was to overthrow the government and savage any elected official who approved of electoral votes for Joe Biden.
As I explained here, the DOJ – with the willing cooperation of pusillanimous judges – threw many Jan. 6 defendants into indefinite solitary confinement in federal lockups. This glaringly unconstitutional deprivation of liberty didn’t trouble the left in the least.
Nor did the ACLU crowd utter a peep about how such pressure tactics were designed to force guilty pleas.
Did the left, which stridently believes in emptying prisons of violent felons, speak out when a federal judge threw the book at a demonstrator without a criminal history who had committed no violence or property damage, but had simply taken a selfie and prayed during the 15 minutes he was inside the Capitol? Nope.
As more facts surrounding the events of Jan. 6 have come to light, it has become more apparent that the government’s case is built on shifting sand.
As I detailed here, the government admitted that its claim that rioters breached the barricades and entered the area around the Capitol was false.
Equally untrue was the government’s assertion that U.S. Capitol Police Officer Brian Sicknick was murdered by violent seditionists – a canard that I wrote about here.
And, in the most recent blow to the government’s conspiracy claims, it was revealed that an FBI informant embedded within a group of Proud Boys who were present at the Capitol on Jan. 6 provided the agency with real-time knowledge of what was taking place, including that the group had no plans to attack the Capitol.
To be sure, some of those who participated in the demonstration at the Capitol acted violently toward law enforcement, and they should be held criminally responsible for their actions.
But relatively few demonstrators behaved this way. According to the DOJ, of the 654 people who were arrested in connection with the Jan. 6 riot, only 55 people – a paltry 8 percent – were charged with using a weapon or causing injury to an officer.
The vast majority of people who participated in the events of Jan. 6 simply walked into the Capitol and spent about 15 minutes there posing for selfies and posting pictures on social media.
Yet just as the government has flexed the facts to fit its narrative, it’s now also trying mightily to bend the law. The fact of the matter is that there is no reasonable and readily apparent interpretation of 18 U.S.C. § 1512(c)(2) that would have put any of the Jan. 6 defendants on notice that their attendance at the demonstration at the Capitol that day – a protected activity under the First Amendment – or their mere presence inside the Capitol as part of that protest, constituted a felony punishable by up to 20 years in prison.
It’s not just the Jan. 6 defendants who will suffer from the DOJ’s Machiavellian predation on our justice system – it is all of us, regardless of political affinity.
Nearly 150 years ago, in United States v. Reese, the Supreme Court presciently stated:
“It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.”
Biden’s DOJ found just such a net in 18 U.S.C. § 1512(c)(2).
And soon, when the court rules on Donovan Crowl’s motion to dismiss, we’ll find out whether the judiciary has accepted the invitation to step inside.
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