Court of appeals permits prosecution of Jan. 6 protesters under "obstruction of official proceeding" statute

Bad statutory interpretation, terrible policy

There is no shortage of charges the government can bring against the protesters who entered the Capitol on January 6, 2021 while Congress was about to count electoral college votes. Depending on what a particular protester did, he or she can be charged with entering a restricted government building, assaulting a police officer, destruction of government property, or conspiracy.

This panoply of offenses should ensure that defendants are charged appropriately. For example, someone who entered the Capitol, milled around in the Rotunda for a while, and then left shouldn’t be charged with crimes of the same magnitude as someone who hit a police officer with a pole.

However, Team Biden has come up with a criminal charge that can put the two defendants in this example on an equal footing. That charge, which under the government’s interpretation of the statute in question can apply to anyone who illegally entered the Capitol, is “obstructing an official proceeding” — a crime that carries a prison term of up to 20 years.

And now, a panel of the U.S. Court of Appeals for the District of Columbia has ruled, by a 2-1 vote, that the “obstruction of an official proceeding” crime does indeed apply in these cases.

In my view, this ruling is incorrect as a matter of law and chilling as a matter of policy. I understand that no low-level offender is going to get a 20 year sentence for his or her “obstruction.” It’s not clear that any January 6, 2021 defendant will. However, now that the appeals court has sided with the administration, it can leverage a prosecution for “obstruction” into sentences for low-level and medium-level offenders that many of us would consider excessive.

Let’s turn, then, to the statute in question and the court of Appeals decision. Under the statute the crime of obstruction of an official proceeding is committed when someone “alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding or otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so” and does so “corruptly.”

Adopted in response to the destruction of evidence in the Enron matter, this law is intended to enable the government to prosecute those who destroy documents sought by investigators. Depending on how one interprets the word “otherwise,” however, the law can reach far more broadly.

If “otherwise” is another way of saying “in any way,” it can reach the January 6, 2021 protesters. If it means “similarly,” it cannot.

Judge Florence Pan, a Biden appointee, interpreted "otherwise” the first way. She therefore ruled that the government can use the “obstruction” charge to prosecute defendants who impeded the counting of electoral college votes.

Judge Gregory Katsas, a Trump appointee and in my opinion a great candidate for the Supreme Court, dissented. He interpreted otherwise as meaning “similar to.”

Judge Justin Walker, a Trump appointee, joined with Judge Pan to make up the majority. However, he wrote a separate opinion stating that he would have joined the dissent were it not the case that the reach of the law can be narrowed by requiring prosecutors to prove each defendant’s corrupt state of mind under an exacting standard.

In my view, Judge Katsas’ interpretation of the statutory language is persuasive. The string of examples in the “obstruction” statute that proceeds the “otherwise” clause narrows the scope of the law. If not, as Katsas asked, why did Congress write the first half of the statute.

Moreover, although the case should be decided on interpretative, not policy, grounds, I agree with Jason Willick that the dissent’s interpretation avoids a huge amount of potential mischief. Willick explains:

The obstruction statute is inextricably linked to politics, making it especially important to get right. Representative government, after all, is a never-ending series of efforts to influence proceedings in the executive and legislative branches. Such efforts can take the form of protest, persuasion, legal pressure, parliamentary maneuvering, leaks, threats, or, yes, violence. The greater the political stakes, the harder people will try to influence government — and the more controversial those efforts will be.

So in applying this statute, the legal system isn’t just construing ambiguous language. It is essentially setting the boundaries of advocacy in a democracy, and the degree of punishment available for transgressions. How can citizens influence public institutions? Both Katsas’s and Walker’s opinions quote Judge Laurence H. Silberman, who died last year: “If attempting to influence a congressional committee by itself is a crime, we might as well convert all of Washington’s office buildings into prisons.”

Yet the Justice Department wants courts to bless its view that any attempt to influence a government body is indictable under the statute so long as prosecutors believe it was done “corruptly.”

And contrary to what Judge Walker wrote, the “corruptly” requirement does not meaningfully protect political dissent. As Willick points out:

[“Corruptly” is] a legal term of art with disputed meaning, and which political opponents routinely use to label one another. If a statute doesn’t clearly specify what acts are criminalized, it invites prosecutions based on subjective interpretations of a person’s motives.

It’s also noteworthy that Judge Pan declined to define “corruptly” because, she said, the rioters’ conduct fits “any proposed definition.”

Therefore, says Willick, quoting Katsas:

The prosecutors’ construction would sweep in advocacy, lobbying, and protest — common mechanisms by which citizens attempt to influence official proceedings. Historically, these activities did not constitute obstruction unless they directly impinged on a proceeding’s truth-seeking function through acts such as bribing a decisionmaker or falsifying evidence presented to it.

Willick’s conclusion is spot on:

The last thing the country needs is a new, open-ended grant of power to prosecutors to reach into the political system. That could be used to target not just protesters but interest groups and officials who fall out of favor with the president’s Justice Department. . . .

Control over the Justice Department will keep changing partisan hands. No one benefits in the long run if politics transforms into an exercise of raw power and retribution unconstrained by law.

Congress did strongly constrain use of the obstruction-as-a-crime statute to punish dissent. Unfortunately, the court of appeals chose to override the statute’s constraint. Let’s hope the Supreme Court takes the case and reverses the decision.