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Obstruction charge takes center stage at January 6 hearing

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Prosecutors and defense attorneys clashed Monday at a federal appeals court hearing in Washington over the use of a criminal charge whose viability could affect the cases of hundreds of people charged in connection of the Jan. 6, 2021, attack on the Capitol — and could help decide what charges, if any, may ultimately be brought against former President Donald J. Trump.

The charge central to the arguments before the United States Court of Appeals for the District of Columbia was obstruction of due process before Congress.

The Justice Department has used the tally in numerous Capitol riot cases to describe how a pro-Trump mob disrupted the central January 6 event: the certification of the 2020 election that took place during a joint session of Congress.

Defense attorneys want the appeals court to rule that the charge was incorrectly applied by the Justice Department and to dismiss it from all January 6 cases in which he was charged.

The arguments presented during the 90-minute hearing, while highly technical, touched on a crucial issue that shaped the contours of the government’s extensive January 6 inquiry. That question was how prosecutors in hundreds of cases decided between charging people for petty offenses like trespassing or disorderly conduct, which carry a maximum of six months in jail, or counting obstruction. much more serious, which carries a maximum of 20 years in prison.

During the hearing, a prosecutor, James Pearce, argued in favor of the obstruction charge, saying it had been correctly applied in nearly 300 criminal cases on January 6. The law requires proof that any interference in congressional proceedings is done “in a corrupt manner”, and Mr Pearce argued that in cases where the charge has been used, the defendants committed other acts of “corruption”. corruption” such as destroying government property or assaulting police officers.

A defense attorney, Nicholas D. Smith, countered that the obstruction charge was wrongfully applied and that its use in all Capitol riot cases should be struck down – even in those in which defendants have already pleaded guilty or have been sentenced.

Mr. Smith claimed it was “an injustice” that the government repeatedly used the obstruction charge instead of bringing a less serious charge like illegally parading on Capitol Hill.

If the three-member court panel rules in favor of the defense, it would be a devastating blow to the government’s attempts to hold pro-Trump rioters who stormed the Capitol responsible for the attack. An unfavorable ruling would force prosecutors to rush for a replacement charge or accept the lower sentences attached to lesser charges.

It could also have a chilling effect on the Justice Department’s investigation into Mr. Trump’s role in nullifying the election.

Given that a California federal judge and the House Select Committee investigating Jan. 6 both said there is evidence that Mr. Trump is guilty of obstruction of Congress, legal experts have argued that If the former president is prosecuted in connection with Jan. 6, he is likely to face the obstruction count.

The charge — formally known in the criminal code as 18 USC 1512(c)(2) — was never fully suited to the many cases arising from the attack on the Capitol. It was enacted as part of the Sarbanes-Oxley Act of 2002, which was intended to crack down on corporate malfeasance.

The measure was initially intended to prohibit things like document shredding or witness tampering in congressional investigations. Defense attorneys in dozens of Capitol riot cases have disputed its applicability, arguing that prosecutors stretched the law beyond its scope and used it to criminalize behavior that looked too much like at a protest protected by the First Amendment.

A judge on the appeals court panel, Gregory G. Katsas, seemed to agree with this argument. Judge Katsas, who was appointed by Mr Trump, said the government’s interpretation of the law appeared to establish a “new conception of obstruction entirely separate from tampering with evidence”.

But another Trump-appointed panel member, Judge Justin R. Walker, left open the possibility that the government used the charge correctly. Judge Walker noted that while lesser charges have often been used to punish people who protested at other Capitol events, what happened on Jan. 6 could not be considered a “normal protest.” .

The third judge on the panel, Florence Y. Pan, appointed by President Biden, appeared to side with the government throughout the hearing.

Over the past year, 18 federal district court judges in Washington have ruled that the obstruction charge is valid. Only one judge, Carl J. Nichols, said its use in the Jan. 6 cases was inappropriate.

In three cases, Judge Nichols, who was also appointed by Mr Trump, dismissed the obstruction charge, reading the law narrowly and saying it could only be used if there was evidence that the obstruction in question had an effect on “a document, record or other object.

The Justice Department appealed Judge Nichols’ three rulings to the Washington Circuit Court. The cases included those of Joseph Fischer, a Pennsylvania police officer accused of pushing law enforcement officers during the attack on the Capitol; Garret Miller, a Dallas man charged with storming the building and confronting officers inside; and Edward Jacob Lang, a self-proclaimed social media influencer from New York who prosecutors say attacked police with a baseball bat.

Thousands of pages of court documents suggest prosecutors did not bring the obstruction charge willy-nilly, but instead used it for defendants whose behavior appears to have gone beyond mere trespassing or disorderly conduct. The count has been used against defendants who broke into the Capitol during an initial attack wave, entered a sensitive area of ​​the building such as the Senate floor, or remained inside for long periods of time. periods.

Yet an appeals court ruling quashing the charge would seriously damage cases against as many as 290 defendants who have been charged with obstruction. It would also affect the cases of at least 70 people who have already been convicted – or pleaded guilty – to the count.

These include prominent January 6 rioters like Jacob Chansley, also known as QAnon Shaman, who was sentenced to 41 months in prison for single-handedly obstructing, and five members of the Oath Keepers militia who were convicted of obstruction – and other charges including sedition – last month.

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nytimes

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