The evidence-tampering statute being used by the U.S. Department of Justice to prosecute hundreds of Jan. 6 defendants is unconstitutionally broad, interferes with First Amendment free speech, and has left prosecutors with “unbridled, standardless discretion to effectively make up their own law,” a new Supreme Court filing argues.
Mr. Lang, at least 317 other defendants, and former President Donald Trump have been charged with corruptly obstructing an official proceeding: the tallying of Electoral College votes from the 2020 presidential election by a joint session of Congress on Jan. 6, 2021. The charge is a felony with a maximum 20-year prison term.
“To be charged is to be convicted because the criminal charge has no fixed meaning,” wrote attorneys Thomas Renz and Bradford Geyer in a 61-page brief filed with the Supreme Court on Sept. 29.
Obstruction of an official proceeding is the most widely charged felony in Jan. 6 cases. Dozens of Jan. 6 defendants have already been convicted under the law, which has never been used in such a way since it was implemented in 2002 as a means to curb corporate financial fraud.
Judge Nichols wrote that §1512(c)(2) “requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.”
The DOJ has not yet responded to the challenges presented in the Lang case. Just before the Sept. 29 deadline for its submission, the DOJ asked the Supreme Court for 30 more days to file its brief because of heavy workload. That request was granted. The new deadline is Oct. 30.
Legal researcher Jonathon Moseley, who helped prepare the FormerFedsGroup brief, said the DOJ’s use of the obstruction law in Jan. 6 cases is dangerous.
“The Department of Justice has been engaged in a revolution totally changing the USA’s criminal justice system by vastly reinterpreting old laws,“ Mr. Moseley told The Epoch Times. ”You don’t want creativity in a prosecutor any more than creative accounting.
“The amicus curiae brief focuses also on how the DOJ is stripping the qualifier ‘corruptly’ out of the statute,” Mr. Moseley said. “Removing that limitation means that the Biden DOJ can charge anyone—yes, any reader of The Epoch Times, anyone—with a 20-year felony.”
Mr. Moseley said the Supreme Court taking this case would be an important check on the DOJ’s expansion of prosecutorial power.
Partisan Application?
Mr. Renz pointed out that the uneven application of §1512(c)(2) is seemingly based on partisan politics.“In 2018, protestors obstructed the U.S. Senate Judiciary Committee and physically took over the Hart Senate Office Building to try to stop the confirmation of Brett Kavanaugh to the U.S. Supreme Court,” Mr. Renz wrote. “They were mostly released in about five hours on $50 bond, later dropped.
“In May to June 2020, rioters laid siege to the White House. Apparently, more law enforcement officers were injured in the assault on the White House than on January 6, 2021,” the new brief reads.
The DOJ’s novel use of the law has left Jan. 6 defense attorneys “baffled” as to how their clients might be caught up in this 20-year felony.
“The only guiding principle appears to be whether a protester agrees with government messages,” Mr. Renz wrote.
The statute reads:
“Whoever corruptly- (1) 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 (2) otherwise 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.”
The statute was part of the 2002 Sarbanes-Oxley Act approved by Congress in the wake of accounting scandals at major corporations, including Enron, WorldCom, and Tyco International. The law was intended to prevent corporate fraud and improve auditing and financial disclosures.
A key issue in the debate is the meaning of the word “corruptly” in the statute.
Defendants and protesters from the Jan. 6 events “are chilled in the exercise of their free speech, the right to petition their government for the redress of grievance, and to peacefully assemble,” Mr. Renz wrote.
“Are they guilty of ‘corruptly’ ‘influencing’ an ‘official proceeding’ when no one knows what ‘corruptly’ means?”
Congress has used the term “unlawfully” much more frequently in federal statutes than “corruptly,” Mr. Renz said.
Other Laws Apply
Mr. Renz cited the 1893 case United States v. Pettibone to argue that the conduct at issue with Jan. 6 protesters is already covered by other federal statutes.“In Pettibone, the Supreme Court opined in 1893 that ‘corrupt’ implied more than a state of general malevolence; it required a ‘specific design to thwart justice,’” he wrote. “Courts applying this specific intent standard have typically recognized that the term corrupt implies ‘a higher degree of mental culpability than mere knowledge or general intent.’”
“What did Congress mean about ‘corruptly’ obstructing a proceeding when Congress already addressed this exact scenario in a different set of statutes without using the term “corruptly?” Mr. Renz wrote.
In a fractured and confusing 1-1-1 ruling in April, the U.S. Court of Appeals for the District of Columbia Circuit “assumed that any of various definitions of ‘corruptly’ would not affect the application of the statute,” Mr. Renz said. “That is not correct. None of the proposed definitions are viable.”
Some of the defendants charged under §1512(c)(2) were accused of assaulting law enforcement officers, but for others, their presence alone as part of a large crowd of protesters and rioters at the Capitol was enough to obstruct, impede, or influence the joint session of Congress.
“The trial court cannot presume that impeding law enforcement is a corrupt act,” Mr. Renz said. “Would interrupting an officer to ask where is the bathroom be a felony?”
Congress already covered acts at the Capitol that could interfere with proceedings such as hearings, Mr. Renz said.
Title 40 U.S. Code §5104 prohibits “utter[ing] loud, threatening, or abusive language, or engag[ing] in disorderly or disruptive conduct, at any place in the grounds or in any of the Capitol Buildings with the intent to impede, disrupt, or disturb the orderly conduct of a session of Congress or either House of Congress, or the orderly conduct in that building of a hearing before, or any deliberations of, a committee of Congress or either House of Congress.”
That statute does not use the term “corruptly” and carries a maximum penalty of six months in jail. Mr. Renz said.
“Turning 6–12 month misdemeanors into a 20-year felony demands more of us in a precise, sound definition,” he wrote.
“As seen now in unprecedented ‘January 6 Jurisprudence,’ a statute purporting to criminalize conduct can be unconstitutional if it leaves a public official with unbridled, standardless discretion to effectively make up their own law within the vagueness of the statute,” Mr. Renz said. “The statute must not invite enforcement officials to legislate.”
The law also violates the First Amendment, Mr. Renz wrote.
“18 U.S.C §1512(c)(2) is unconstitutional in violation of the First Amendment to the U.S. Constitution in that the statute imposes up to 20 years in prison for one who ‘(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so’ corruptly,” he said.
“The inexplicable inclusion of ‘influences’ violates the First Amendment right to petition the government for the redress of grievances and free speech,” he said.
Quoting the 1971 Supreme Court case Hobbs v. Thompson, the brief said the obstruction law could have a chilling effect.
“Lack of fair warning to actors or lack of adequate standards to guide enforcers also may lead to a ‘chill’ on privileged activity,” it reads. “A person contemplating action who might be covered by a vague statute is left in doubt as to whether he is covered by the statute and, if so, whether his claim of privilege will be upheld.”
The potential scope of abuse of the obstruction law is very broad, Mr. Moseley said.
“It is the right of every U.S. citizen to ‘influence’ official proceedings under the First Amendment,” Mr. Moseley said. “If there is no clear meaning of ‘corruptly,’ then you can be charged [with] a felony punishable by 20 years for attempting to ‘influence’ any congressional or judicial hearing.”
