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Lead felony charge against Jan. 6 defendants could be unconstitutionally vague, U.S. judge warns

The scene at the Capitol on Jan. 6. (John Minchillo/AP)

A federal judge has warned that the lead felony charge leveled by the government against Capitol riot defendants could be unconstitutionally vague, potentially putting convictions at risk of being overturned on appeal.

U.S. District Judge Randolph D. Moss identified the latest hurdle for federal prosecutors investigating January’s attack on Congress during a two-hour hearing last week over whether to dismiss the “obstruction of an official proceeding” charge from a 10-count indictment against two men from Colorado and Utah.

Moss’s remarks highlight the challenge prosecutors have faced in defining the most severe criminal conduct allegedly committed on Jan. 6. Prosecutors have employed the obstruction charge rather than sedition or insurrection counts in accusing at least 235 defendants of corruptly disrupting Congress’s certification of the 2020 electoral-college vote.

Attorneys for Brady Knowlton and Patrick Montgomery claimed that specific offense did not apply to them, arguing that the joint House and Senate session that met Jan. 6 does not qualify as an official proceeding of Congress. Moss made clear he was not persuaded by that claim at this point.

But in the first hearing of similar challenges brought by more than a dozen Capitol riot defendants in eight cases, Moss ordered further briefing by all sides over the underlying question of how the Justice Department distinguishes felony conduct under the statute, punishable by up to 20 years in prison, from misdemeanor offenses, such as shouting to interrupt a congressional hearing.

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Moss, who was appointed to the U.S. District Court for the District of Columbia in 2014, said the government could face a “constitutional vagueness problem” if it cannot articulate to courts or put individuals clearly on notice how “corruptly” obstructing or influencing Congress differs from ordinary trespassing, parading or disorderly conduct in the Capitol — lesser charges that are punishable by no more than six months in prison.

“Unless we can tell the public where that line is, there’s a problem,” Moss said.

The Justice Department could wait “a couple years” until trials are held to confront the issue, the judge said, but warned, “You wonder whether the government might run into double-jeopardy problems or just real headaches,” unable to retry defendants if a U.S. appeals court rejects that approach and dismisses the convictions.

Lawyers familiar with the probe, in which more than 565 have been charged, say Moss’s fast-tracking of the question may help create legal certainty in the long run. But now it throws a wrench into plea talks between prosecutors and defendants if their counsels see a key charge on shaky footing. If so, prosecutors may be forced to turn to charges with weaker penalties — such as rioting or civil disorder, which some think fail to capture the severity of events — or re-indict defendants with more politically charged crimes such as seditious conspiracy.

University of Michigan law professor Barbara McQuade, a former federal prosecutor, called the argument raised by Moss “creative . . . but one that is not likely to prevail.”

“The word ‘corruptly’ has been previously defined by courts to limit the statute’s application to unlawful conduct with criminal intent,” McQuade said. “As long as that term is not unconstitutionally vague, it is up to juries to decide.”

The Justice Department declined to comment about how its plea-deal or charging strategies could be affected, saying in an emailed statement, “We typically do not discuss cases or charging decisions beyond what is stated or submitted to the Court.”

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Prosecutors have brought the obstruction count in many of the most notorious cases, including against members of the Oath Keepers, Proud Boys and Three Percenters groups accused of conspiring and preparing in advance for violence. Others who face the charge include scores of individuals not accused of violence or destruction but of some of the most egregious conduct — such as occupying the Senate chamber, sitting in the vice president’s chair and targeting government officials.

Moss led the Justice Department’s Office of Legal Counsel under President Bill Clinton and now chairs the federal judiciary’s Committee on Criminal Law. The concerns he raised highlight a long-standing debate over action taken by Congress as part of the ­Sarbanes-Oxley corporate responsibility act in 2002, when it broadly expanded an obstruction-of-justice statute to cover “whoever corruptly . . . obstructs, in­fluences, or impedes any official proceeding.”

Congress passed the Sarbanes-Oxley Act after a corporate fraud crisis wiped out hundreds of billions of dollars of shareholder value, including the early 2000s collapse of Enron Corp. and accounting giant Arthur Andersen. But some have questioned whether the expansion applies only to financial fraud or to traditional ­obstruction-of-justice crimes such as destroying documents, or was meant to serve as a broad “catchall” for obstructive acts, as lawmakers and U.S. prosecutors argue.

Moss noted that the Supreme Court in 2015 rejected an aggressive interpretation of a related law, tossing the conviction of a Florida Gulf Coast fisherman who prosecutors said destroyed evidence — fish — to impede U.S. wildlife inspectors who believed he was keeping red grouper smaller than the 20-inch minimum. The court ruled that when Congress barred the destruction of any “tangible object,” it meant documentary evidence, not animals, but accepted the law’s coverage of matters beyond financial fraud.

Moss said he thought it “a little odd” that Congress truly meant to adopt a sweeping anti-obstruction statute in Sarbanes-Oxley “without mentioning a word of it in any of the debate.”

His greater concern, he said, was that prosecutors could encounter what an independent counsel did in 1991, when the U.S. Circuit Court of Appeals for the D.C. Circuit overturned the conviction of former national security adviser John Poindexter for “corruptly obstructing” a congressional inquiry into the Iran-contra affair, finding the statute did not clearly encompass simply lying to Congress.

Moss asked what “the limiting principle” is for obstructing a congressional proceeding. What about someone who stages a sit-in and forces police to remove them from a hearing? Or blocks committee-room doors? Or slashes the tires on a chairman’s vehicle? Or threatens lawmakers with vows to spend whatever it takes to defeat them?

“This may be an issue in which both parties and the government have an interest in resolving sooner rather than later,” given the number of Jan. 6 cases, he said.

As it turns out, Moss on July 19 handed down the first and only sentence so far to one of six Jan. 6 defendants who have pleaded to the obstruction charge, Paul Hodgkins, a Tampa press operator. Of the others, four are allegedly affiliates of Oath Keepers.

In court, Justice Department appellate-section attorney James I. Pearce acknowledged that “it is a difficult question” and “a complicated thing.”

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“We certainly don’t want to spend a lot of time and prosecutorial energy and resources prosecuting cases only to find [our] view of the statute . . . is not the [court’s],” Pearce said.

Pearce emphasized that the government was not asserting that lodging the felony charge was a matter of prosecutorial discretion — what Moss negatively characterized as a ‘Trust us’ argument. “We’re only going to charge this in cases that we think are really bad,” he said.

Instead, Pearce argued that when Congress wrote the statute, “It’s ‘corruptly,’ there, that’s doing the limiting-principle work.” Otherwise, “another way to say ‘intent to obstruct’ [Congress] is ‘intent to advocate,’ ” he said.

Running through Moss’s hypotheticals, Pearce agreed that a constituent calling to oppose a lawmaker for pursuing an investigation instead of legislation could be described as having an intent to obstruct, “but I think we’d all recognize that’s also a perfectly valid and important part of democratic advocacy.”

The same is true for a sit-in protester or shouter, Pearce said. U.S. prosecutors have not accused most defendants who allegedly breached the Capitol — including while Congress’s certification vote was to take place — with obstruction but with more-traditional trespassing and unlawful parading, he noted.

But Pearce said the government simply viewed the law as requiring “both intent to obstruct, as well as wrongfulness,” and said whether a crime was wrongful enough to convict as a felony is one that U.S. appeals courts have said is up to a jury to decide.

Confronting police, charging into a Capitol where the only business taking place was confirming the presidential election, forcing lawmakers to flee, storming a chamber where lawmakers were set to act, or running and shouting “Where is Mike Pence? We’re going to hang Mike Pence,” all qualify as historically unique acts of wrongful obstruction, Pearce said.

Moss likened forcing the evacuation of lawmakers and the vice president to obstructing justice by chasing a judge and jurors from a courthouse. Still, he asked whether Pearce could cite any other ­cases, given the statute’s “enormous breadth,” in which the government charged comparable conduct.

“This particular type of conduct I’m not aware of having been prosecuted under this statute before,” Pearce said. “But I also think what we saw on January 6th was unprecedented in scope and violence.”