Jan. 6 rioter claims Supreme Court petition may impact ‘many’ DOJ cases.
A Defendant’s Challenge to Obstruction Charge in Capitol Riot Case Reaches Supreme Court
A defendant facing 11 charges for participating in the Jan. 6, 2021, riot at the Capitol is asking the Supreme Court to toss out one of his charges for obstructing justice, arguing it could be levied against “anyone who attends a public demonstration gone awry.”
The justices are being asked to consider whether a federal law, Section 1512 (c)(2) of the United States Code, is the right statute to prosecute defendant Edward Lang, saying this question “will arise in hundreds of cases as the Department of Justice continues to charge folks who participated in a protest turned violent on January 6, 2021,” according to a petition filed on July 11.
Obstruction Charge and Alleged Conduct
On the day of the riot, Lang was allegedly seen on video picking up a police riot shield and slamming it into the ground near law enforcement, according to an FBI affidavit. He is also accused of swinging a baseball bat at police officers multiple times, striking officers’ shields.
Lang’s counsel filed a motion to dismiss the obstruction charge, which carries a 20-year sentence, before his trial, and the U.S. District Court for the District of Columbia granted his motion. An appeals court later reversed the lower court’s judgment, and a motion for a rehearing was denied.
The charge in question carries the stiffest penalty available to prosecutors so far in the Jan. 6 cases and has also been applied to several notable figures involved in the riot, including Enrique Tarrio and Stewart Rhodes, leaders of the groups Proud Boys and Oath Keepers, respectively, along with some of their associates.
While dozens of Jan. 6 defendants have sought to have the charge dismissed, U.S. District Judge Carl Nichols, an appointee of former President Donald Trump, is the only judge that has been willing to do so in Lang’s case.
Statute’s Broad Application and Potential Impact
Lang’s attorney Norm Pattis told the Washington Examiner that the statute has been broadly applied to his client’s case, noting the language of the statute states an individual who “corruptly alters, destroys, mutilates, or conceals a record, document” or “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so” can be imprisoned for up to 20 years. The official proceeding refers to Congress’ certification of the Electoral College votes that elected Joe Biden as president.
“What does it mean to do something corruptly?” Pattis asked, adding that the upshot of allowing this charge to stand means that “a lot of people are gonna be afraid to turn up at public events for fear if somebody acts up, they’re all gonna go to prison.”
Supreme Court Review and Potential Implications
Pattis believes that Lang’s case would be ripe for Supreme Court review, in part because of a recent decision in a case known as Counterman v. Colorado, a 7-2 decision holding when a defendant is prosecuted for communicating a violent threat, the government must prove that the defendant understood that the communication would likely be perceived as a threat.
The petition calls on the justices to hear the case “as the nation’s attention turns to the 2024 election,” adding that there is “good reason” to believe the DOJ’s use of the statute will “serve to chill political speech and expression on the eve of one of the most consequential events in American life – the election of the next President of the United States.”
The case will be considered by the nine justices during a Sept. 26 conference, according to the high court’s docket.
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