Judges question constitutionality of felony charge against Jan. 6 defendants

If Code Pink demonstrators start screaming during a congressional hearing, should they be charged with a felony and sentenced to 20 years in prison? They have not been, and as much as I dislike Code Pink, they should not be. Thirty days in the hole seems like a sufficient sentence.

But the federal statute that criminalizes “obstructing an official proceeding” of Congress makes such obstruction a felony punishable by up to 20 years in prison. And according to the Washington Post, federal prosecutors are applying that statute to the protesters — at least 235 of them — who entered the Capitol in January of this year.

A few judges have noticed the disconnect. U.S. District Judge Amit P. Mehta recently asked how federal prosecutors distinguish felony conduct qualifying as “obstructing an official proceeding” of Congress from misdemeanor offenses the government has brought against those who interrupt congressional hearings. Dissatisfied with the answer, Judge Mehta complained:

Essentially, what you said is, ‘Trust us.’ And that is a real problem when it comes to criminal statutes, to suggest, ‘We know it when we see it, and we’ll pick and choose when it is an appropriate exercise of prosecutorial discretion.’ 

Of course, the problem is particularly acute in cases like Code Pink and Jan. 6, where the government is likely to pick and choose based on its sympathy, or lack thereof, for the protesters.

Mehta is the second judge to raise this concern in these cases. Judge Randolph Moss voiced it last month.

Moss and Mehta were appointed by President Obama.

Both judges have said that the government must put individuals clearly on notice as to 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. Both suggest that the statute in question falls short and thus is unconstitutionally vague.

Their point has special resonance in the case of many of the January 6 defendants — the substantial number of them who entered the Capitol but did little more than mill around peacefully for a while. I know of one such defendant who did nothing more than that, and left when a Capitol police officer instructed him to.

Yet this defendant and others like him face the prospect of being prosecuted for obstructing an official proceeding.

In my view, they did no such thing. But even if they had, their “obstruction” was less direct than what occurs when Code Pink types try to shout down speakers during congressional hearings.

One of the prosecutors told Judge Mehta that the key thing here is that the January 6 defendants acted “corruptly” because “they intended to intimidate Congress.” The claim that those protesters who simply milled around in the Capitol intended to intimidate Congress is truly a stretch. Shouting at members of Congress during a hearing seems more intimidating than wandering around unseen by any member.

In any event, whatever their intent, a protester’s presence in the building, without more, obstructed nothing.

On a related note, I learned tonight that a group of leftists has told Justice Kavanaugh “you’re going to hear from us” over the Supreme Court’s dismissal of the initial challenge to that Texas abortion statute. They have scheduled a protest next week outside of Kavanaugh’s home.

18 U.S. Code § 1507 subjects those who “with the intent of interfering with, obstructing, or impeding the administration of justice, or with the intent of influencing any judge, juror, witness, or court officer, in the discharge of his duty, pickets or parades in or near a building housing a court of the United States, or in or near a building or residence occupied or used by such judge. . .shall be fined under this title or imprisoned not more than one year, or both” (emphasis added). If the anti-Kavanaugh folks carry through with their threat, which would clearly amount to intimidation, will the Biden Justice Department prosecute them under this statute? Will it ask for a one-year prison sentence?

I very much doubt it. These protesters are on the DOJ’s side.

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