A federal appeals court heard arguments Monday on whether the Justice Department can use a felony obstruction charge typically employed in evidence-tampering cases for prosecutions brought against some alleged January 6, 2021, Capitol rioters.
Two judges on the DC Circuit US Court of Appeals – both appointees of former President Donald Trump – considering the question had skeptical inquiries for the government about whether the charge, which carries a 20-year maximum, really applied to the riot prosecutions the Justice Department was bringing.
A three-judge panel from the appeals court is considering a ruling from US District Judge Carl Nichols, also a Trump appointee, who dismissed the charge against three alleged rioters.
“Each reading” of the statute in question “has its difficulty,” said Circuit Judge Gregory Katsas on Monday, referring to the differing interpretations of the obstruction statute being put forward by the Justice Department and the defendants.
“I am not sure clarity cuts in your favor,” Katsas told an attorney for the Justice Department.
The second Trump appointee on Monday’s panel, Circuit Judge Justin Walker, wondered whether the case should be sent back to Nichols for further proceedings. However, Walker also acknowledged the “unprecedented” nature of the violent assault that interrupted Congress’ certification of President Joe Biden’s 2020 win, suggesting that might warrant the use of the charge.
At stake is whether prosecutors will have available in their legal arsenal for January 6 riot cases the obstruction charge, which carries much more serious penalties than the misdemeanors that criminalize unlawful entering of the Capitol and picketing within the grounds.
The obstruction statute makes it a felony to alter, destroy or mutilate a record, document or other object with the intent of making it unavailable in an official proceeding, or to “otherwise” obstruct, influence, or impede any official proceeding.
Most of the federal judges overseeing the Capitol riot cases have blessed the DOJ’s use of the charge, accepting prosecutors’ argument that the certification vote was an “official proceeding” and that the rioters were impeding it.
However, Nichols dismissed the charge for the three defendants whose cases are now before the appeals court. Nichols, in an opinion handed down in March, concluded that it was not appropriate because the alleged conduct was not aimed at tampering with a document or other object. Monday’s hearing comes after developments in the January 6 investigation in the recent months – including the appointment of special counsel Jack Smith – have shed light on how investigators are now looking at the plotting to disrupt the certification vote that went beyond the physical breach of the Capitol. However, it is unclear how the DC Circuit’s eventual ruling on the obstruction statute could affect the DOJ’s approach to Trump’s inner circle.
Much of Monday’s appeals court hearing focused on the specific grammar and punctuation Congress used when writing the statute, which was passed, in part, to address the document-shredding that happened in the wake of the Enron scandal.
Katsas noted the use of the phrase of “Corporate Fraud” in the title of the 2002 law and said that while the conduct on January 6 was “reprehensible” on “many levels,” it did not involve corporate fraud.
The third member of the circuit panel, Biden-appointed Judge Florence Pan, appeared to be leaning towards reversing Nichols’ ruling as she grilled the lawyer for the defendants, Nicholas Smith.
She pushed back against the defendants’ arguments that the charge should only be used when evidence in an investigation is being tampered with, and the judge accused Smith of playing “Whac-A-Mole” in how he answered her questions about specific parts of the statute by pointing to other parts.
Smith said that how the government was interpreting the statute was an “injustice.” The use of the term, along with an analogy Smith made about the work done by political operatives to disrupt aspects of the 2000 Florida recount, irritated Walker, who may be the swing vote in the case. Smith had argued that, if the obstruction statute was interpreted the way DOJ proposed, it could have been enforced against political operatives who sought to stop the counting of certain categories of ballots in the recount.
But Walker said he took “umbrage” to some of Smith’s arguments, as the judge pressed him on how the operatives who worked on the Florida recount could be compared to the defendants’ alleged statements of wanting a “civil war” and of taking lawmakers to the “gallows.”