A federal judge overseeing the trial of the Texas man who threatened his kids over his alleged involvement in the Jan. 6 attack on the U.S. Capitol has joined the growing list of her colleagues questioning prosecutors’ decision to charge rioters with obstruction of an official proceeding.
Should federal courts find the statute’s deployment too vague in Jan. 6 cases, prosecutors can lose one of the most serious felonies in their statutory quiver. It is the same statute that led to Jacob “QAnon Shaman” Chansley’s more than three-year sentence for his flamboyant—Viking hat, coyote-fur headdress-clad, red-white-and-blue face painted, and U.S. flagpole-toting—invasion of the Senate chamber on Jan. 6.
Multiple defendants in the Oath Keepers cases pleaded guilty to violating that statute, including ones now cooperating with the government, and a question mark could hang over its future deployment in the sprawling Jan. 6 docket.
U.S. District Judge Dabney Friedrich, a Donald Trump appointee, had pointed questions for Assistant U.S. Attorney Jeffrey Nestler at a hearing Friday in the case of Guy Wesley Reffitt, the first Jan. 6 defendant charged with carrying a weapon inside the Capitol building.
Three of the 14 charges against him fall under 18 USC 1512(c)(2), which penalizes anyone “[w]hoever corruptly otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so[.]”
Friedrich questioned whether the government would be able to prove that Reffitt acted “corruptly” by joining the scores of Trump supporters who stormed the U.S. Capitol to disrupt Congress’ certification of the Electoral College vote count for the 2020 presidential election.
After expressing her confusion as to why prosecutors didn’t pursue charges under the sections of the statute that didn’t have the word “corruptly,” Nestler said that the government’s decision to do so was deliberate.
“We have taken on a higher burden for ourselves, a higher mens rea,” Nestler said. “We have taken on more for ourselves … to prove that [Reffitt]’s intention was corrupt, that it was evil and wrongful.”
“But what does that mean? The jury needs to decide what’s evil?” Friedrich asked. “That doesn’t have meaning. It’s standardless.”
Friedrich also had questions for Reffitt’s attorney William Welch, who argued that the certification of the Electoral College votes was not an “official proceeding.”
“The Electoral College certification is ministerial, not adjudicative,” Welch said, arguing that since the proceeding didn’t relate to the “administration of justice,” Reffitt could not have violated the statute prohibiting interference with an official proceeding.
“Not everything Congress does is an official proceeding under the statute,” Welch also said.
“We can agree to disagree,” Friedrich said, having previously expressed skepticism about Welch’s definition of official proceeding under the statute.
Reffitt is the main organizer behind the group of federal inmates calling themselves the “1/6ers,” and took credit for organizing the nightly recitation of the Pledge of Allegiance and singing of the national anthem.
An attorney for another Jan. 6 defendant called the nightly gatherings “cult-like.”
Friedrich is the third judge to question the government’s decision to file charges under section 1512(c)(2).
U.S. District Judge Amit Mehta, a Barack Obama appointee, questioned Nestler at a September hearing about the decision to prosecute other Jan. 6 defendants under the same statute.
U.S. District Judge Randoph Moss, also appointed by Obama, asked similar questions about the charge in the case of a Utah man who allegedly confronted police officers during the Capitol attack.
U.S. District Judge Timothy Kelly, a Trump appointee, is expected to hear similar arguments later this month in the case of Doug Jensen, who was seen on video chasing a police officer up a flight of stairs inside the Capitol on Jan. 6.
At the end of the hearing, Friedrich ordered the government to file a Bill of Particulars with the court outlining how the government intended to prove its case.
[Image via FBI]
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