Some of the accused U.S. Capitol rioters are complaining they've been charged with a crime they didn't actually commit, but one legal expert explained the statute clearly covers the actions they allegedly took to stop the certification of the 2020 election.
At least 275 of the more than 700 defendants charged in the Jan. 6 insurrection have “been charged with corruptly obstructing, influencing, or impeding an official proceeding, or attempting to do so," which comes from a statutory amendment to the Victim and Witness Protection Act of 1982 added two decades later after the accountants for the energy firm Enron shredded documents to conceal them from investigators, wrote columnist Kimberly Wehle for The Bulwark.
"The legitimacy of using this criminal statute has become a point of paranoid contention in far-right media, as when Steve Bannon discussed it on his podcast last week with guests Marjorie Taylor Greene and Julie Kelly," wrote Wehle, a professor at the University of Baltimore School of Law and former federal prosecutor. "All told, the argument that this statute doesn’t fit the alleged crimes is a stretch. If you read the plain language (rather than delve into the reasons behind the law), the defendants’ argument that it’s too narrow to cover the Jan. 6th crimes is not totally meritless, but it is weak."
The 2002 amendments were intended to extend the law's reach beyond witness tampering to cover a broad range of activities, and while some judges have asked prosecutors why some defendants have been charged with obstructing an official proceeding while many others have been charged with lesser offenses, such as remaining in a restricted building.
"The plain language [of the statute] is very broad, and does not contain anything conceivably limited to evidence tampering," Wehle wrote. "A conservative 'textualist' would, in theory, reject the claim that the sweeping text should somehow be confined by the legislative history illuminating Congress’s concerns. The text is what governs — not the trail of breadcrumbs left in the legislative history about individual members’ views on the subject."
It's not clear exactly where prosecutors are drawing the line between obstruction, which carries a potential 20-year prison term, and some of the lesser charges, which may carry only a six-month penalty, but it does appear that they're focusing on the extremist groups that appear to have organized the assault.
"Prosecutors appear to be leveraging the greater charge against members of the more organized, premeditated, and violent groups like the Proud Boys and the Oath Keepers, as well as notorious offenders who went into the Senate chamber or individual offices," Wehle wrote. "It’s the felony that Jacob Chansley, the 'QAnon shaman,' pleaded guilty to; he is now, after changing lawyers, appealing his sentence of 41 months in prison followed by 36 months of supervised release."