The Washington PostDemocracy Dies in Darkness

The potential trouble with Jan. 6 defendant prosecutions

Proud Boys members Joseph Biggs, left, and Ethan Nordean, right walk toward the U.S. Capitol on Jan. 6. (AP Photo/Carolyn Kaster)

D.C. and Capitol police are preparing for a rally Saturday with potentially hundreds of people in support of defendants who are jailed or facing charges over their actions on Jan. 6.

The protest comes as federal prosecutors move on from charging people who stormed the Capitol with smaller crimes to prosecuting those they say committed the most egregious ones, such as inciting people to intimidate and commit violence against elected officials.

But now those prosecutors may have run into a problem with their legal strategy.

At least two federal judges have questioned the main charge prosecutors are using to try to go after more than 200 people involved in the Jan. 6 insurrection, to obstruct “any official proceeding” of Congress, reports The Post’s Spencer S. Hsu.

But legal experts who spoke to The Fix say there’s still hope for prosecutors’ main legal avenue to punish some of the most prominent Jan. 6 insurrectionists. Here’s what’s going on.

The history of the charge

To “obstruct [an] official proceeding” is a relatively new crime, part of a statute in a 2002 law related to corporate criminal activities. Among many other things, Congress strengthened the sentencing guidelines for obstructing justice and destroying evidence in an investigation. Within that law, they said impeding “any official proceeding” could be punishable by up to 20 years in prison. (“Whoever corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so.”)

One Jan. 6 defendant has pleaded guilty to this charge so far. Jon Ryan Schaffer, one of the founders of Oath Keepers and one of the first to try to break into the Capitol, pleaded guilty to obstruction of an official proceeding of Congress and trespassing on restricted grounds. Instead of the maximum 20 years, his plea agreement asks for 3½ to four years of prison as he provides information on other defendants.

Where the law is potentially tripping up prosecutors

Let’s revisit the day that Congress is set to certify Joe Biden’s victory in the presidential election. After hearing from defeated President Donald Trump’s on the National Mall, hundreds of his supporters smashed their way into the Capitol and tried to stop Congress from putting its official stamp of approval on Biden’s win. They only stalled that process; lawmakers returned later that night and approved his election. That certainly sounds like an obstruction of an official proceeding to a layperson.

But some of the defendants have tried to tease out different meanings from the law. For example, is stopping a largely procedural vote to confirm electoral results really obstruction of an official proceeding?

“It would be like someone interrupting a congressional declaration of war,” one defense attorney said. “That’s a very serious event, but it’s not obstruction of justice.”

That may sound like splitting hairs, but there are other pushbacks that seemed to resonate more with judges.

Part of the law talks about obstructing of a proceeding in the context of destroying evidence. So how is that tied to storming the Capitol? That’s what U.S. District Judge Amit P. Mehta, an Obama appointee, asked recently: “Scaring the daylights out of everyone in the House or Senate . . . to me is very different than destroying evidence or intimidating witnesses.”

Also, what even is destroying evidence? In 2005, the Supreme Court decided a related obstruction law didn’t apply to a fisherman who threw out fish to evade U.S. wildlife authorities. That had judges questioning whether the obstruction law could be thrown out in these cases as well, Hsu reports.

One problem from judges’ vantage point is that a law about obstruction could be viewed as too vague. So, too, could the crimes. Where is the line between trespassing in the Capitol and stopping its lawmakers from doing their jobs?

The vagueness of the law comes from the fact that lawmakers in 2002 were probably trying to legislate criminal activity that had been taken in the past and what they couldn’t imagine could come in the future. (Like people storming the Capitol.) They intentionally left room for interpretation by future judges.

And that’s what’s happening now, said Barbara McQuade, a former U.S. attorney under the Obama and Trump administrations and now a law professor at the University of Michigan. She said she thinks these judges are “just musing out loud” about how the law fits with Jan. 6, to hear more about how prosecutors understand it.

Prosecutors appear to have their reasons for using this 2002 obstruction law. One told a judge that the government plans to prove at trial that a defendant intended to stop these proceedings and intimidate Congress.

More broadly, it’s possible the federal government wasn’t expecting to meet such resistance from the Jan. 6 defendants. Cases like this usually end in plea deals and don’t go to trial. But a number of the Jan. 6 defendants are fighting the weightier charges every step of the way, said Michael German, a former FBI agent now at the Brennan Center’s national security program.

They’re prodded along by Trump, who recently said in a statement ahead of Saturday’s rally that “Our hearts and minds are with the people being persecuted so unfairly.”

A Washington Post review found that about 44 percent of the Jan. 6 defendants are charged with low-level crimes such as trespassing or disorderly conduct and probably won’t serve any jail time. Prosecutors decided to get those cases out of the way first before they started with the more egregious crimes.

German has criticized the Justice Department’s focus on charging people with smaller crimes first, saying it has allowed too many of the violent offenders to fall through the cracks.

“There are still dozens, if not hundreds of people who did engage in violence at the Capitol who have not yet been identified and charged, and many of those — including some who were charged — continue to menace communities across the country without law enforcement intervention,” he said.

This summer, a Proud Boys member who was charged with trespassing and disorderly conduct related to Jan. 6 appeared at protests in Portland, Ore., with weapons and confronted liberal protesters, OregonLive reported.

Another founder of the Oath Keepers remains free and uncharged, even though prosecutors say he allegedly told his fellow members what weapons to bring and how to form to storm the Capitol. He stayed outside the building that day, report Hannah Allam and Hsu.

We don’t know what will happen next

Despite some tough questioning from judges, prosecutors may well prevail with these obstruction of an official proceeding charges. One of the judges questioning the obstruction charge also accepted a plea deal for that same felony.

We’re not privy to why prosecutors chose this 2002 law to punish Jan. 6 insurrectionists. Although there are other laws that criminalize interfering with Congress, they carry a lower penalty. McQuade said this is the most well-known law on the books about obstruction.

And legal experts stressed that the proceedings are in the early stages, and more details about their strategy could be revealed as these cases get prosecuted in the coming months.

This has been updated.