The Government’s Case Against Many Jan. 6 Defendants is in Legal Jeopardy

Ameer Benno:

“…The obstruction charge on which the government is relying so heavily may, in fact, be unconstitutional as applied to most of the Jan. 6 defendants…

…Over 650 people have been criminally charged in connection with the riot at the Capitol on Jan. 6.  The main charge against hundreds of these defendants is felony “obstruction” under 18 U.S.C. § 1512(c)(2).

That statute provides:

“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.”

Most of the other charges against the Jan. 6 defendants involve misdemeanors sounding in trespass, vandalism and disorderly conduct for which the maximum sentence is one year imprisonment, thus making the obstruction charge the most serious by far.

Yet the Biden Department of Justice, in its facts-and-law-be-damned fervor to nail those on the political right to the wall, once again seemed to have overplayed its hand.

The obstruction charge on which the government is relying so heavily may, in fact, be unconstitutional as applied to the Jan. 6 defendants.

Donovan Crowl

To understand why this is so, one need only look to the case of Donovan Crowl.  Crowl, who according to papers filed by his attorney is a 50 year-old Marine veteran from Ohio with no prior criminal convictions, attended the Jan. 6 Stop the Steal Rally at The Ellipse in Washington D.C..

Thereafter, Crowl and others made their way to the Capitol.  According to the indictment against him, this group aligned in a “stack” formation and marched single file, each “keeping at least one hand on the shoulder of the other in front of them,” up the east side stairs of the Capitol.  At approximately 2:40 p.m., says Crowl’s lawyer, Crowl and the others in his “stack” passed through the Capitol doors that were already open and entered the Rotunda.

At 3:05 p.m. – just 20 minutes later – Crowl exited the building.  The others in Crowl’s “stack” had either left the Capitol contemporaneously with him or earlier.

Crowl did not destroy property, injure anyone or threaten to do so. He is not accused of possessing any weapons or of stealing documents or other items belonging to members of Congress.

The Charges

Crowl and 16 others eventually were arrested and charged on a singular indictment.

Counts One and Two of the indictment charged all of the defendants with “corruptly obstruct[ing]” the certification of the Electoral Vote in violation of 18 U.S.C. § 1512(c)(2), and conspiring with others to do so (Crowl also was charged with two misdemeanors – trespass and aiding and abetting the destruction of government property.)

Notably, the Joint Session of Congress on Jan. 6 had been suspended at 2:29 p.m. that day – 11 minutes before Crowl and the others entered the Capitol – and it did not resume until 9:02 p.m. that evening.

Nevertheless, the indictment alleges that the defendants’ entrance into the Capitol and presence there for no more than 20 minutes after Congress had recessed obstructed the Congressional proceeding in violation of §1512(c)(2).

Crowl’s lawyer recently filed a motion to dismiss the obstruction charge.  In it, she argued that it was factually impossible for Crowl to have obstructed a Congressional proceeding that was already over at the time Crowl engaged in the conduct charged in the indictment.

But she also raised an important legal argument: that the obstruction statute relied on by the government is unconstitutional as applied to most of the Jan. 6 defendants because it did not put them on notice that a brief trespass into the Capitol while participating in a political rally could subject them to a 20-year prison sentence.

The Void-for-Vagueness Doctrine

The Due Process Clause of the Fifth Amendment provides that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law.” The Supreme Court has made clear that this guarantee is violated when the government “tak[es] away someone’s life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.”

Without such guidelines, explained the high court, a criminal statute would permit “a standardless sweep” that would “allow policemen, prosecutors, and juries to pursue their personal predilections.”

How dangerous that would be in the hands of a vengeful DOJ.

But that’s exactly where we find ourselves.  The Biden Administration has used an ambiguously worded criminal statute to crush President Trump’s supporters – and along with them their families and their livelihoods…”