Government prosecutors are testing “a novel legal strategy” by reaching back to a 2002 federal law passed in the wake of the Enron scandal to obtain longer sentences against leaders of the MAGA riot, according to a Wall Street Journal report today.
“The investigation is entering a more contentious phase as it nears the one-year mark, with initial trials set to test the government’s strategy of using provisions first laid out in a 2002 financial-industry law to prosecute some accused of leading the mob,” the Journal reported.
“In the riot’s wake, prosecutors searched for tools to elevate some of the cases beyond the misdemeanor charges often applied for unruly but far less momentous Capitol protests. They turned to a provision in the 2002 Sarbanes-Oxley Act, enacted after the accounting-fraud scandal and collapse of Enron, which imposes a potential 20-year sentence on those convicted of obstructing an ‘official proceeding.’ The measure expanded what counts as obstruction and closed loopholes used by people involved in the Enron fraud.”
Some 270 rioters are facing that felony charge, the Journal reported. The use of the charge has evoked sharply divergent reactions from former prosecutors and current defense attorneys.
“Some former prosecutors said the unprecedented events of Jan. 6 prompted the government to think creatively about how to charge the rioters. “I do think the charge makes sense under the circumstances, but I also think it’s necessarily novel, because these facts haven’t arisen before,” said Ben Glassman, a former U.S. attorney in Ohio who has prosecuted domestic terrorism cases,” the Journal reported.
“Defense lawyers say they particularly object to prosecutors’ demands that defendants agree to the enhanced punishments under a plea deal that bump a sentence to 41 months or more, which they say is out of line with past cases.”
The Journal reported that “some of the defendants ‘have coalesced around an effort to poke holes in that central element of the government’s strategy—with limited success to date.” And this:
“Prosecutors have offered to drop additional charges for some of the rioters if they plead guilty to that count and accept a punishment that would likely involve more than three years in prison. Several have taken that deal, with at least two sentenced to date along those lines. Others have rejected those conditions—specifically the enhanced sentence requirements—and are opting instead to go to trial.”
The Journal report indicated that federal judges might be receptive to the application of the Sarbanes-Oxley Act’s conspiracy provisions to the Capitol riot cases.
“Last week, two federal judges in Washington separately rejected arguments that the crime described in the 2002 statute wasn’t appropriate. “The term ‘official proceeding’…means ‘a proceeding before the Congress,’ ” U.S. District Judge Amit Mehta, who is overseeing one of the most high-profile cases to stem from the riot against 17 people affiliated with the Oath Keepers militia, wrote in a Dec. 20 opinion. “A straightforward reading of that definition easily reaches the Certification of the Electoral College vote,” he wrote.
The first trials testing the strategy before juries are expected to begin in February, the Journal reported.
You can read the full Wall Street Journal report here (subscription may apply).