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Judges aren’t accepting any challenges to obstruction charges for Jan. 6 attackers
February 3, 2022 3:10PM ET
“Washington, DC - January, 6 2021: Trump supporters rioting at the US Capitol.” (Phot: Sebastian Portillo/Shutterstock)
BuzzFeed justice reporter Zoe Tillman captured one key commonality in the court cases of the Jan. 6 insurrectionists as they appear before judges: Their pleas to remove the charges of obstructing an official proceeding are being rejected.
In her piece Thursday, Tillman explained that the charge carries with it a maximum sentence of 20 years in prison. The description in the statute is 18 USC 1512(c)(2), which says that any person who "corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so" can be charged.
Sean McHugh is among those who have tried to eliminate some of the charges in his 10-count indictment, the obstruction charge being among the most serious. The judge in his case refused, and he's not the only one. The charges against the Oath Keepers and Proud Boys members are certainly not being dismissed, but that extends down to the lower-level offenders too.
"Prosecutors have used the obstruction charge to distinguish cases they contend involve more serious offenders, compared to the hundreds of people they charged solely with misdemeanor crimes for illegally being in the Capitol," Tillman explained.
More than half of the cases have at least one felony within them, the report said, but the more serious and the most contested is the obstruction charge.
Among the 22 federal judges presiding over the capitol attack cases, more than half haven't made decisions about the issue yet. Those judges who have, however, all unanimously agree that they're not dismissing the charge. There's also no commonality in the opinions, as judges appointed by former Presidents George W. Bush, Barack Obama and Donald Trump all agree that the charge stands.
The Capitol attackers are trying to narrow the definition of the law, saying that the certification of the Electoral College results shouldn't be considered an "official proceeding" because the count was largely ceremonial. The problem in that argument is that the proceeding is outlined in the Constitution.
Tillman noted that the most recent edit of the law came from the Enron cases in the mid-2000s. Subsection 1512(b) makes it clear that the accused must "knowingly" obstruct the proceeding. For anyone who attended Donald Trump's speech, the former president made it clear that the election was being certified and that Vice President Mike Pence was presiding over it.
"Anyone you want, but I think right here, we're going to walk down to the Capitol, and we're going to cheer on our brave senators and congressmen and women, and we're probably not going to be cheering so much for some of them," Trump told the crowd, making it clear that there were officials at the Capitol.
"So we're going to, we're going to walk down Pennsylvania Avenue. I love Pennsylvania Avenue. And we're going to the Capitol, and we're going to try and give," he said at the close of the speech. "The Democrats are hopeless — they never vote for anything. Not even one vote. But we're going to try and give our Republicans, the weak ones because the strong ones don't need any of our help. We're going to try and give them the kind of pride and boldness that they need to take back our country."
They're also trying to claim the word "corruptly" is so broad that it should be unconstitutional. Though "corruptly" is pretty specifically defined.
Judge John Bates disagreed with the claim that the proceeding wasn't official.
"It was a formal assembly of the Congress for the purpose of conducting official business, and it involved an entity other than Congress — the Electoral College — as an integral component," he wrote in the decision. "McHugh’s contrary interpretations are unavailing."
You can read the full report at BuzzFeed.
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