Jan. 6 rioter says his Supreme Court petition could affect ‘hundreds’ of DOJ cases
Kaelan Deese
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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.
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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.
The origin of the statute dates back to the early 2000s in an effort to crack down on white-collar crime. It was codified in the Sarbanes-Oxley Act of 2002, which increased regulation in the wake of the accounting fraud scandal surrounding Enron and WorldCom.
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.”
Federal Judge Florence Y. Pan, who was tapped by Biden to succeed Justice Ketanji Brown Jackson on the U.S. Court of Appeals for the District of Columbia Circuit, wrote the opinion that revived the charge for Lang and two other defendants in April, arguing that the alleged “assaultive conduct” by Lang on the day of the riot fits unambiguously within the “otherwise” clause of the federal statute.
Subsection (c)(1) includes a specific prohibition against “corruptly” tampering with “a record, document, or other object” to impair or prevent its use in an official proceeding, Pan wrote. Subsection (c)(2) proscribes “corrupt” conduct that “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,” she added.
Members of the House committee investigating the riot also cited the charge when it issued criminal referrals against Trump. And as the former president announced this week that he received a so-called target letter related to special counsel Jack Smith’s investigation into alleged efforts to subvert the 2020 election results, Pattis suggested Trump himself may also be subject to the charge.
“The way the statute’s being read by the Justice Department, it could be put to that use” in Trump’s potential third indictment, Pattis said.
Pattis believes that 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.
As of July 6, more than 1,069 rioters have been arrested, with approximately 594 federal defendants receiving sentences. More than 310 defendants, including Lang, have been charged with “corruptly obstructing, influencing, or impeding an official proceeding, or attempting to do so,” according to the DOJ.
Lang is currently scheduled to go to trial in the fall and is presently incarcerated as a pretrial detainee.
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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.