Jan. 6 Defendants Keep Losing Challenges To A Felony Charged In Hundreds Of Cases

Obstructing an official proceeding carries a maximum sentence of 20 years in prison. Judges are united so far in greenlighting it in Jan. 6 cases.

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People enter the Senate Chamber during the riot on Jan. 6, 2021, in Washington, DC.

WASHINGTON — As the Jan. 6 insurrection unfolded, prosecutors say Sean McHugh of California engaged in a series of escalating confrontations with police on the grounds outside. They highlighted videos that allegedly recorded McHugh yelling at officers, holding a large metal-framed “Trump” sign to push against a defensive line, using a megaphone to urge on other rioters toward the building, and deploying a yellow stream later identified as bear spray.

Late last year, McHugh made a push to get several charges tossed out from his 10-count indictment, starting with a felony that accused him of obstructing an official proceeding — Congress’ certification of the Electoral College results. It’s one of the most serious charges brought in the Jan. 6 prosecutions when it comes to potential penalties, carrying up to 20 years in prison.

This week, McHugh lost. He's not alone: A chorus of judges in recent weeks have rejected legal challenges to the obstruction charge, including in high-profile conspiracy cases against people associated with the Oath Keepers and Proud Boys extremist groups. It’s a significant string of wins for the government as the sprawling investigation churns into its second year. Prosecutors have used the obstruction charge to distinguish cases they contend involve more serious offenders, compared to the hundreds of people they charged solely with misdemeanor crimes for illegally being in the Capitol.

Indictments involving conspiracy and assaults on police during the Capitol attack have tended to capture public attention, but the stakes are high for the government when it comes to the obstruction charge: More than half of the 735 federal cases filed to date involve at least one felony, and nearly all of those cases feature the obstruction count.

It’s the most contested charge in the Jan. 6 prosecution effort, with defendants in more than two dozen cases to date arguing that it shouldn’t apply to a situation like the attack on the Capitol. US District Judge John Bates, who ruled against McHugh, is at least the seventh judge to side with the government, with decisions coming down in at least 11 cases (some judges have ruled in multiple cases).

The fight isn’t over. Similar challenges are pending in more than a dozen other cases, including before judges who haven’t weighed in on the issue yet; there are 22 federal district judges in Washington, DC, presiding over Jan. 6 prosecutions. One ruling from a district judge doesn’t bind the rest of the bench; they’re free to disagree with one another absent some future opinion from the US Court of Appeals for the DC Circuit. But so far they’ve been unanimous, with decisions coming from judges whose paths to the bench span the political spectrum, including members confirmed under former presidents Donald Trump and Barack Obama (Bates was a George W. Bush nominee.)

The fate of the obstruction count has sweeping consequences for the Justice Department’s management of these cases. In the first year, prosecutors focused early waves of plea offers on misdemeanor cases. The sentences handed down in connection with those agreements, usually featuring little to no time behind bars, earned the Justice Department and judges criticism that defendants were getting a slap on the wrist for joining an effort to stop the peaceful transfer of power. A looming felony charge generally gives the government more leverage in plea negotiations, and guilty pleas or trial convictions in felony cases carry harsher potential sentences (defendants with little to no previous criminal record are likely to face sentences well below the maximum, though).

US Department of Justice

A person alleged by the federal government to be McHugh during the Jan. 6 riot.

The federal criminal statute at issue, 18 USC 1512(c)(2), states that a person who “corruptly … obstructs, influences, or impedes any official proceeding, or attempts to do so” can face up to 20 years in prison. Congress adopted the language as part of a package of reforms in the aftermath of corporate scandals in the early 2000s, including the collapse of energy giant Enron and revelations about how key players tried to destroy documents and evade investigation.

Defendants charged in the Capitol attack have pushed for a narrower reading of what qualifies as an “official proceeding” and argued that Congress’ joint session on Jan. 6, 2021, to certify the Electoral College results shouldn’t count. They’ve also argued that their alleged actions at the Capitol weren’t the type of obstructive conduct that the law was meant to cover, and that the word “corruptly” is so vague that it’s unconstitutional.

Some defendants have argued that an “official proceeding” should be related to the administration of justice and involve the presentation of evidence or witness testimony. McHugh had argued that it had to be “adjudicative,” similar to a court hearing, and that the Jan. 6 certification session didn’t fit the criteria because it was a “ceremonial and administrative event.” Not so, Bates found.

“It was a formal assembly of the Congress for the purpose of conducting official business, and it involved an entity other than Congress — the Electoral College — as an integral component,” Bates wrote. “McHugh’s contrary interpretations are unavailing.”

Prosecutors have often paired the obstruction count with separate charges that a defendant committed other serious crimes at the Capitol, such as assaulting police or conspiracy. They’ve also charged it in cases where they contend the evidence is more robust about a person’s intent to disrupt Congress, or that their presence played a more direct role in halting the joint session. It’s cropped up in cases where defendants are accused of verbally confronting police or joining a crowd that pushed against law enforcement. And it’s appeared in cases where defendants are accused of making their way into the Senate chamber — like the case of Paul Hodgkins, sentenced to eight months in prison after pleading guilty to obstruction — or explicitly searching for lawmakers.

The government has also pursued the charge in some, but not all, cases where defendants allegedly spoke publicly or posted online about the reasons they went into the Capitol. One high-profile example was the case of Jenny Cudd, who livestreamed from outside her hotel that evening and described how she and other “patriots” decided to “storm” the Capitol after learning former vice president Mike Pence had “betrayed us” and would not seek to overturn the election. She took a deal to plead guilty to a misdemeanor charge — prosecutors have extended similar offers to a handful of defendants indicted for obstruction but no other felonies — and is scheduled for sentencing in March.

The first big decision on the lawfulness of the obstruction charge in these cases came on Dec. 10, when US District Judge Dabney Friedrich denied a challenge raised by defendants Ronald Sandlin and Nathaniel DeGrave. Sandlin and DeGrave are also charged with conspiracy — prosecutors allege they planned for a violent attack on the Capitol and traveled with a cache of weapons — as well as other felony counts for assaulting and interfering with police officers inside the Capitol. In successfully arguing to keep Sandlin and DeGrave in jail while their cases go forward, prosecutors submitted videos that they said showed the two men fighting with officers trying to stop rioters from going through a door to the Senate gallery.

Sandlin and DeGrave’s challenge to the obstruction charge raised three main points. First, when Congress gathered for a special session to certify the results of the Electoral College, it wasn’t the type of “official proceeding” the law was meant to cover. Second, even if it were an “official proceeding,” their alleged actions that day didn’t “obstruct, influence, and impede.” Finally, DeGrave argued the term “corruptly” was too vague, which meant it was unconstitutional.

Friedrich rejected their interpretation of “official proceeding” — they argued it had to involve witnesses or evidence — although she noted that not every single action that Congress took would qualify. It had to be “ akin to a formal hearing,” and that was true of the Jan. 6 joint session, the judge concluded.

“There is a presiding officer, a process by which objections can be heard, debated, and ruled upon, and a decision — the certification of the results — that must be reached before the session can be adjourned,” Friedrich wrote.

The fact that the obstruction law was part of Congress’ response to the Enron scandal didn’t stop courts from applying the text to other types of situations, the judge found. She wrote: “That Congress acted due to concerns about document destruction and the integrity of investigations of corporate criminality does not define the statute’s scope.”

The word “otherwise” opened the door to a range of potential criminal activity that could “obstruct” an official proceeding, she wrote, including the allegations that Sandlin and DeGrave tried to stop Congress’ certification of the vote “by engaging in disruptive conduct, including by assaulting law enforcement in the Capitol.”

The challenge to the word “corruptly” failed for the same reason, Friedrich found. Quoting from an unrelated, earlier case, she wrote that “independently criminal” conduct would come under the umbrella of “corruptly.” The allegations that Sandlin and DeGrave plotted in advance, breached the Capitol to stop the vote certification, assaulted police officers, and encouraged people to steal items from the Senate “fall on the obviously unlawful side of the line,” she wrote.

Just over a week after the ruling in Sandlin and DeGrave’s case, US District Judge Amit Mehta on Dec. 20 released an opinion in arguably the most significant and highest-profile prosecution effort to date: the conspiracy case against people allegedly affiliated with the Oath Keepers. In a footnote, Mehta pointed out that Friedrich rejected many of the same arguments raised in the Oath Keepers case, and that although he wasn’t going to explicitly cite her opinion, “the court simply notes its agreement with Judge Friedrich’s holdings and finds her reasoning for those holdings to be persuasive.”

The original Oath Keepers case split into three separate prosecutions last month, including the bombshell seditious conspiracy case that added Oath Keepers founder Stewart Rhodes into the mix. Mehta recently made clear that his rulings in the original conspiracy case would carry over, heading off any attempt to relitigate the obstruction charge.

The opinions that followed Friedrich’s initial ruling quoted from and built on one another. The day after the Oath Keepers decision, US District Judge James Boasberg refused to dismiss the obstruction count against Aaron Mostofsky, a New York man whose presence in the Capitol went viral because of his fur-laden outfit and his status as the son of a judge. Prosecutors previously offered a deal that would require Mostofsky to plead guilty to the obstruction count, which he didn’t take. They later dropped the offer down to a felony that carried less potential prison time, civil disorder, and two misdemeanors, and he accepted; he appeared in court on Wednesday to enter the guilty plea.

Dec. 28 saw back-to-back decisions upholding the obstruction count in a conspiracy case brought against a set of leaders from the Proud Boys extremist group and in a case against two men accused of making their way to the Senate gallery and confronting police officers both inside and outside the building.

Friedrich weighed in again on Dec. 29, rebuffing arguments raised by Guy Reffitt, a Texas man accused of bringing a gun onto the Capitol grounds. Reffitt allegedly tried to go up a set of steps leading to the building but was turned back by police. He is set to be the first Jan. 6 defendant to go to trial later this month.

More rulings upholding the lawfulness of the obstruction charge have come in over the past month, with some judges announcing their decisions from the bench in lieu of a formal written opinion like the one that Bates released in McHugh’s case this week. Other defendants who recently lost challenges include Jerod Hughes, who prosecutors say was part of the mob that chased US Capitol Police Officer Eugene Goodman inside the building and made it to the Senate chamber, and William Pepe, who prosecutors say was a leader of his local Proud Boys chapter and is charged with conspiring with other Proud Boys members to breach the Capitol.

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