Judge raises doubts about obstruction charges in Jan. 6 cases

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A federal judge aired grave doubts Friday about a key charge the Justice Department is relying on in cases against hundreds of Jan. 6 Capitol riot defendants, raising the prospect of legal turmoil in more than a third of the prosecutions stemming from the violent attack.

During a two-hour hearing, U.S. District Court Judge Dabney Friedrich contended that the government is applying a particular obstruction offense in a way that “seems really far afield” from what Congress intended.

The criminal charge is one prosecutors have leveled against at least 265 of the more than 700 Jan. 6 defendants, according to DOJ statistics issued earlier this month.

Friedrich, an appointee of President Donald Trump, appeared to be seriously considering dismissing the obstruction count — which carries a maximum 20-year prison sentence — in the case of Guy Reffitt, who is charged with confronting an officer outside the Capitol and bringing a firearm onto the grounds.

Such a ruling would almost certainly lead to dismissals of that charge in other cases she’s handling and could influence similar rulings in other cases against Jan. 6 participants. In many instances, the obstruction charge is the most serious count the defendants face.

At issue is the Justice Department’s decision to hit the Jan. 6 defendants with a criminal charge that is more commonly applied to alleged intimidation of witnesses, jurors or judges, or to destruction of records or evidence.

The offense is usually described in court dockets and news stories as obstruction of justice, but prosecutors turned to it to charge alleged Capitol riot participants because it technically applies to efforts to thwart any “official proceeding” conducted by the federal government. That includes the Jan. 6 counting of Electoral College votes that lawmakers are constitutionally mandated to conduct, DOJ contends.

Grand jury indictments charge many alleged Capitol riot participants with trying to disrupt that process.

But defense lawyers for some alleged rioters argue that the provision — and its whopping two-decade maximum prison term — doesn’t apply outside the justice system. They note that one word in the statute, “corruptly,” seems easy to understand in the context of threatened witnesses or shredded documents, but doesn’t have a clear legal significance in connection with a physical disturbance that forces a Congressional proceeding to break up or be delayed.

The issue came to a head Friday at a hearing for Reffitt. Reffitt’s attorney, William Welch, has asked Friedrich to dismiss the obstruction charge.

During the hearing, Friedrich seemed to agree that the obstruction statute cited was a poor fit for the assault on the Capitol building, particularly because of the focus on acts committed “corruptly.”

“This is a vague, undefined word,” Friedrich said of the statute’s reference to corrupt intent.

“When you’re looking at such an undefined term that you’re interpreting so broadly … you’re basically saying the meaning of corruptly is wrongful,” Friedrich said to prosecutor Jeffrey Nestler. “You’re essentially asking the jury to make a moral judgment here as to what’s wrongful.”

Friedrich repeatedly asserted that prosecutors could have brought another obstruction-related felony charge that involves harassment aimed at delaying or preventing someone from attending an official proceeding. That charge carries a three-year maximum prison term.

“I don’t understand why you didn’t charge that one,” the judge said, noting that doesn't require a showing of corrupt intent.

Nestler said he thought Reffitt could have been charged with the harassment offense, but prosecutors chose the one requiring showing corruptness. He said the Supreme Court has defined corrupt conduct as that which is “wrongful, immoral, depraved or evil.”

But Friedrich said she wasn’t comfortable asking jurors to make a judgment that sounds more moral than factual.

“What does that mean? The jury is to decide what’s evil?” she asked. “Every other time, historically, Congress used the word ‘corruptly,’ it was in a different way.”

Precisely what would transpire if Friedrich knocks out the charge is hard to predict. Other judges would not be required to follow her ruling, although they would likely consider it.

A final resolution of the issue by the D.C. Circuit Court of Appeals could be difficult to reach in a timely way because it is difficult for the government to obtain review of judges’ rulings that reject a single charge, rather than an entire case.

Prosecutors might choose to preemptively reindict cases to add the lesser harassment charge.

It is also unclear how much good a ruling knocking out the obstruction of Congress charge against Reffitt would do for him since he also faces several other charges, including threatening to shoot his son and daughter if they snitched on him about his activities at the Capitol on Jan. 6. Prosecutors filed a single, more traditional obstruction of justice charge over those alleged threats. In theory, he could get up to 20 years in prison on that count alone.

Defense lawyers, including Welch, are also pursuing other arguments against the charges, including contending that the joint meeting of Congress that took place on Jan. 6 was not an official proceeding under the statute.

However, Friedrich said to prosecutors Friday that she agreed with them on that point.

“I buy your argument there,” she said.

Friedrich did not issue a ruling on the pending motion Friday, but gave prosecutors until Nov. 29 to present their position in writing in greater detail.

Kyle Cheney contributed to this report.

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