Appeals Court Ruling May Threaten DOJ Position in Dozens of Jan. 6 Cases: Lawyer

Attorney Albert Watkins in New York City on April 11, 2023. Samira Bouaou/The Epoch Times

An April 7 decision issued by the District of Columbia Court of Appeals may jeopardize a key legal backing used by the Department of Justice (DOJ) to prosecute participants in the Jan. 6, 2021, Capitol breach, according to attorney Albert Watkins.

“What this opinion did do was, it practically begged for other [Jan. 6] cases to be brought up to the Court of Appeals that would permit a more balanced opinion,” Watkins, who has represented four Jan. 6 defendants, including released prisoner Jacob Chansley, told The Epoch Times on April 11.

Watkins’s comment came after a three-judge panel at the D.C. Court of Appeals on April 7, struck down a lower court’s ruling in a 2–1 vote, dismissing a federal charge against three Jan. 6 defendants, and rejected the lower court’s reasoning about the scope of the obstruction charge.

Although the higher court’s ruling (pdf) allowed the DOJ’s prosecution of these three specific defendants—Joseph Fischer, Edward Lang, and Garret Miller—to continue, the effect of the higher court’s opinion extends beyond these cases, the attorney said.

According to Watkins, this extended effect has to do with the interpretation of language regarding “corrupt” intention in obstruction charges, considering that the DOJ has been using the obstruction charge as an “attractive” legal tool to prosecute Jan. 6 cases and score plea agreements.

According to a provision in the statute for obstruction charge (18 U.S. Code Section 1512 2(c)), “Whoever corruptly ... obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”

A narrowed definition of this provision could hinder the DOJ’s ability to use the charge further and introduce uncertainties in the ongoing trials, the attorney indicated. The DOJ had charged more than 200 Jan. 6 defendants with obstruction-related charges.

“It should cause a certain degree of trepidation on the part of the Department of Justice about utilizing—in a very footloose and fancy-free fashion—the obstruction of an official proceeding charge as the count of choice for pleas,” Watkins said. “I will say it was, in many respects, an extraordinary opinion—more time was spent addressing potential issues not before the court than the issues actually before the court.”

‘Corrupt Intent’

The key issue here is the interpretation of a necessary component of the obstruction charge, the definition of “corrupt intent.”

The appeals court ruling indicates that the DOJ prosecutors set forth an interpretation of “corrupt” criminal obstructive conduct as having “a broad meaning that encompasses all forms of obstructive conduct, including appellees’ allegedly violent efforts to stop Congress from certifying the results of the 2020 presidential election.”

But all three judges of the D.C. Court of Appeals expressed some level of concern in their April 7 ruling about whether the government’s current interpretation of “corrupt” intent is appropriate.

Biden appointee Judge Florence Pan, who wrote the majority opinion, indicated that the definition of “corrupt” intent should be determined in a later case.

“At least one pending case on this court’s docket squarely raises the definition of ‘corruptly’ under [Section] 1512(c),” Pan wrote. “It is more prudent to delay addressing the meaning of ‘corrupt’ intent until that issue is properly presented to the court.”

‘Implausibly Broad’

Trump appointee Judge Justin Walker, in his opinion partially concurring with the ruling, diverged from Pan’s view that “corrupt intent” should be interpreted later and wrote in his opinion that the term should be precisely defined to avoid criminalizing legal civil discourse.

Establishing a corrupt intent requires proving that a defendant intended to “obtain a benefit that he knows is unlawful,” Walker wrote, adding that this interpretation is narrower than the one offered by the government.

Without a narrowed definition, Walker wrote, the obstruction charge could become “implausibly broad” and thus “criminalize many lawful attempts to ‘influence’ congressional proceedings—protests or lobbying, for example.”

A narrowed definition could be applied to a “hypothetical” Jan. 6 protestor, Walker noted.

“This rioter joined the throng outside Congress because he was angry at the nation’s elites. He saw the riot as an opportunity to display his bravado. Though likely guilty of other crimes, he did not act ‘corruptly’ under [the statute] because he did not intend to procure a benefit by obstructing the Electoral College vote count,” Walker wrote.

It’s yet to be seen whether Walker’s opinion will become a binding precedent on the lower courts. Walker contends that it should be. He cited the Supreme Court’s reasoning in Marks v. United States (1977), which says the “narrowest” concurring opinion should be the binding opinion. Pan, objecting to this point in a footnote, says that the D.C. Court of Appeals “has never applied Marks to its own cases” and that “only one federal appellate court has done so.”

In a strongly worded objection to his two colleagues’ April 7 ruling that reversed the lower court’s decision, Trump appointee Gregory Katsas said the breadth of his colleagues’ interpretation of the word “corrupt” would “continue to supercharge comparatively minor advocacy, lobbying, and protest offenses into 20-year felonies, provided the defendant knows he is acting unlawfully in some small way.

“A lobbyist who successfully persuades a member of Congress to change a vote has likewise influenced an official proceeding. So has a peaceful protestor who, attempting to sway votes, holds up a sign in the Senate gallery before being escorted away,” Katsas wrote.

“Of course, this case involves rioting as opposed to peaceful advocacy, lobbying, or protest. But the construction of [corrupt intent] adopted by my colleagues will sweep in all of the above.”

Wider Effects

Watkins noted that the ruling is unusual in the sense that the court signaled clearly that it would like to query the definition of a key term in a provision of law, after recognizing that at least 14 district-level judges adopted the government’s interpretation and upheld the DOJ’s prosecution of Jan. 6 cases.

“What was profound to me was the repeated, apparent effort ... by the Court of Appeals to solicit more cases that will permit them to have a standing to opine—with a good degree of clarity—what is, and is not obstruction, and how and what burdens have to be met ... for that offense,” Watkins said.

Watkins said this ruling wouldn’t necessarily affect pleas that have already been entered but would affect future plea deals offered by the DOJ.

The effect of the ruling is already seen in ongoing trials that involve obstruction charges. Using the Appeals Court’s decision, Nicholas Smith, an attorney representing Proud Boys member Ethan Nordean in his Jan. 6 trial, filed a motion to either update jury instructions or dismiss two charges on behalf of his client on April 8.

“Two of the panel’s judges concluded that the government’s construction of [Section] 512(c)(2) in the January 6 cases featured a ‘breathtaking’ and untenable scope,” Smith wrote in the filing, referring to the appeals court opinion on how to define the term “corrupt” in the obstruction charge.

Smith noted that Walker’s vote in upholding the DOJ’s appeal “depended” on this definition of the term “corruptly.”

That puts the case in a difficult position, Smith said, because if the court agrees with Walker’s interpretation, then the jury needs to be told to examine the evidence differently—namely, that the defendant must be shown to have acted “with the intent to obtain a benefit that the defendant knows is unlawful.”

On the other hand, if the District Court doesn’t adopt Walker’s interpretation, then Walker’s vote, which necessarily depended on his interpretation, would become void by inference. In this case, Smith wrote in the filing that his client would move to dismiss two obstruction charges of a total of six charges.

“Rejecting the ‘corruptly’ definition in Judge Walker’s opinion would be to instruct the jury on an interpretation of [Section] 1512(c)(2) that a majority of the panel found untenable,” Smith wrote.

The government filed a response to Smith on April 10, contending that Walker’s concurring opinion isn’t binding.

It noted that two of three judges—Pan and Katsas, constituting the majority—agreed that the scope of “corruptly” would encompass “all forms of obstructive conduct, including ... efforts to stop Congress from certifying the results of the 2020 presidential election.”

Therefore, the government reasoned, Walker’s opinion isn’t binding, as it wouldn’t necessarily be implicitly adopted by the court’s majority.

The government also wrote that the current jury instruction is legally sufficient and that a change isn’t needed. It reasoned that the term “corruptly” isn’t statutorily defined and thus should be understood with its “ordinary meaning.”

“As a matter of plain language, ‘corruptly’ is ‘normally associated with wrongful, immoral, depraved, or evil,’” the government wrote, noting that this interpretation is supported by case precedents and diverges from that of Walker’s definition. It wrote that this interpretation would allow the jury to look for proof in the evidence that each defendant acted with “consciousness of wrongdoing” and suffices as appropriate jury instruction “in the context of congressional obstruction.”

The government noted that it would supply a modified version of the jury instruction if the court decides to take Walker’s interpretation.