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In a historic move, a Jan. 6 prisoner has taken his challenge of the infamous obstruction charge, levied against him and hundreds of other Jan. 6 prisoners and defendants, all the way to the Supreme Court.
On July 7, attorneys for Jan. 6 prisoner Edward Jacob (Jake) Lang filed a document with the Supreme Court of the United States (SCOTUS) challenging the government’s obstruction of Congress charge—one of the most common felony charges used against Jan. 6 defendants—which carries up to a 20-year prison sentence.
“We filed what’s called a writ of certiorari, or a request to the Supreme Court to hear an issue,” Norm Pattis, lead attorney for Mr. Lang, told The Epoch Times. Mr. Pattis explained that the legal team is asking the high court to review the details behind Mr. Lang’s alleged violation of Title 18 U.S. Code Section 1512(c)(2), one of the 11 charges against him, according to court documents (pdf).
According to the writ, obtained exclusively by The Epoch Times (pdf), “Mr. Lang filed a motion to dismiss the Section 1512 count prior to trial. The District Court granted his motion.”
However, “on a consolidated interlocutory appeal to the United States Court of Appeals for the District of Columbia Circuit joined by two similarly situated codefendants, the Court, in a split decision, reversed the District Court. A motion for rehearing was denied.”
The “question presented for review” is “Whether the Court of Appeals erred in concluding that application of 18 U.S.C. Section 1512(c)(2), a statute crafted to prevent tampering with evidence in ‘official proceedings,’ can be used to prosecute acts of violence against police officers in the context of a public demonstration that turned into a riot, resulting in so ‘breathtaking’ an application of the statute as to run afoul of Van Buren v. United States, 141 S. Ct. 1648 (2021).”
The document warns the high court that “dozens of convictions” on this same obstruction charge are “headed to this Court,” all arising from Jan. 6, and “Resolution of the question is imperative to prevent the use of this statute to prosecute folks who protested in a good faith belief that their actions were necessary to prevent an election from being stolen, an event tantamount to an internal coup d’état.”
“Refusal to resolve this question,” the document predicts, “will chill others inclined to petition and assemble for the redress of grievances, for fear that those opposed to their views might prosecute them for possessing a ‘corrupt’ intent.”
‘Really Far Afield’
Obstruction under Section 1512(c) is among the 37 charges for which the federal government indicted the current GOP frontrunner for the 2024 election, Donald Trump (pdf). A favorable ruling by the Supreme Court could have a significant impact on the former president’s legal future as well.
This is not the first time the obstruction charge has been called into question.
Politico reported that, during a two-hour hearing on Nov. 19, 2021, U.S. District Court Judge Dabney Friedrich argued in the case of Jan. 6 prisoner Guy Reffitt—also charged with hindering communications through physical force, civil disorder, and bringing a firearm onto the grounds (pdf)—that the government’s effort to apply the obstruction charge appeared to run “really far afield” from what Congress intended.
Judge Friedrich ultimately allowed the charge to stand.
On June 7, 2022, U.S. District Judge Carl Nichols granted Mr. Lang’s motion to dismiss (pdf) the obstruction charge.
It was the third time Judge Nichols granted a Jan. 6 prisoner’s motion to dismiss. On March 8, 2022, he had granted the motion to dismiss of Jan. 6 prisoner Garret Miller.
“Upon review of the Defendant’s [Motion to Dismiss], and for the reasons discussed in the Court’s [opinions] in United States v. Miller, it is ordered that the Motion is granted,” Judge Nichols wrote. “It is further ordered that Count Nine is dismissed without prejudice Superseding Indictment [citations omitted].”
Judge Nichols then granted the motion to dismiss of Jan. 6 defendant Joseph Fischer on March 15, 2022.
Judge Nichols believes that the statute “must be interpreted” in such a way that “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.”
In other words, if someone hasn’t been accused of taking such an action, they cannot be charged with this particular violation.
In all, federal prosecutors have charged more than 300 Jan. 6 defendants with obstructing congressional proceedings. The obstruction charge has been frequently used by the Justice Department during plea negotiations and as a means to coerce some Jan. 6 protesters into providing information to incriminate fellow protesters.
‘Reworking the Penal Code’
Mr. Pattis and fellow Lang attorney Steven Metcalf are asking the United States Supreme Court to review their client’s case and determine “whether the federal government is misusing the statute designed to prohibit or deter tampering with evidence or evidentiary proceedings” to inflict “extra heavy punishment on those involved in the January 6 events.”
Title 18 U.S.C. Section 1512 (pdf) provides in part:
(c) 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
the 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 says if you obstruct or impede an official proceeding, by screwing around with records or documents, you’re guilty of a felony,” Mr. Pattis said.
He added, “Congress amended that to include a second section that says if you interfere with an official proceeding you are guilty as well. That statute has been used to punish Jan. 6 protesters who broke the law by trespassing or, in some cases, engaging in acts of violence against police officers, even when that act was in defense of themselves.”
As described by the Congressional Research Service (pdf), the obstruction measure refers to “witness tampering” and the suppression or destruction of evidence in the “obstruction of pending congressional or federal administrative proceedings.”
Instead, Mr. Pattis argues in his SCOTUS filing that the government’s “ambitious federal prosecutors” are “reworking the penal code to make it do work never intended to be done, work that threatens to chill, and does chill, ordinary Americans in their First Amendment rights to assemble, to petition for the redress of grievances and to speak out on matters of public concern.”
“It has a chilling effect on dissent and chills people in the exercise of their First Amendment rights … Now people are going to be afraid to go to a protest, because if that protest turns into a riot they might get charged with a felony carrying 20 years, and that’s ridiculous,” Mr. Pattis told The Epoch Times.
While conceding “there were minor charges” that could “fit” some alleged crimes, he said, “You don’t have to make everything into the functional equivalent of the death penalty.”
The motivation behind the Supreme Court filing, Mr. Pattis said, “is because it’s a 20-year felony.”
“It significantly enhances the criminal exposure of these defendants,” Mr. Pattis asserted. “Our view is that prosecutors have stretched this statute into a shape that Congress never intended it to take. It’s a grotesque overreach on the part of the federal government.”
‘Bigger Than J6’
Mr. Lang says the Biden administration is intentionally twisting the law into a weapon against those who support former President Donald Trump. The SCOTUS filing, he says, is “bigger than J6, and exposes the root of political persecution, using a weaponized DOJ and FBI against conservatives.”
“The 1512 charge the DOJ is using against me and hundreds of other Americans is a perfect example of the Biden regime abusing the law code, and using it as an instrument of political oppression against MAGA dissidents,” Mr. Lang said, in a statement issued exclusively to The Epoch Times. “When the current party in power perverts the law to coerce, threaten, silence, stifle and imprison the supporters of the former political party, in order to scare the public at large from any protesting or political dissent, this is the true mark of the collapse of free speech and our Democratic Republic.”
Mr. Lang, who has been detained for over 900 days without a trial, is currently incarcerated at the Alexandria Detention Center, located in Alexandria, Virginia.
He spoke of the timing of the court filing and how the potential outcome could impact the government’s separate effort to use the obstruction charge to disqualify Mr. Trump from running for the presidency.
“I think the timing of this filing is astronomical,” Mr. Lang told The Epoch Times by phone from the detention center. “Donald Trump is the political frontrunner for the Republican Party, and while the other bogus charges might easily go away through a plea deal, the obstruction of Congress charge carries prison time. This one would land him in serious hot water with a conviction.”
Even with a plea deal, Mr. Lang said, the former president would get prison time, and it would come during an election year “while he’s trying to run his campaign from a prison cell.”
“The stakes couldn’t be higher,” he said. “If we win this, we can bring American jurisprudence back to a healthy state.” He added, “If the 1512 charge is overturned, it could spring hundreds of Jan. 6 defendants from prison.”
“They’re using 1512 as an instrument of political oppression and to coerce, threaten, and imprison dissidents and the supporters and leaders of the political party they ousted. The thing I want to focus on is that in order for America to return to a normal and positive discourse, we need to stop allowing the current political party [to use] the DOJ and the FBI as the strong arm of the law to bend and shape law into an instrument of oppression.”
While dozens of Jan. 6 defendants and prisoners have attempted to have their obstruction charges dismissed, at least 10 federal judges have upheld the charges.
Mr. Lang is the first defendant to take his case against the charge to the Supreme Court.
The SCOTUS filing argues, “In the name of saving democracy, prosecutors are undermining the core principles on which this republic stands.” Without a positive ruling from the Court, it states, “hundreds, if not thousands, of Americans, will face substantial prison sentences for doing no more than speaking out at a protest that evolved into a dynamic conflict.”
“It is no overstatement to say the future of the First Amendment hangs in the balance,” the writ insists. “A statute intended to combat financial fraud has been transformed into a blatant political instrument to crush dissent.”
In his interview with The Epoch Times, Mr. Pattis shared stronger sentiments.
“We think the federal government has effectively declared a jihad, or a holy war, on everyone within sight of Jan. 6, in ways that are chilling, repulsive, and contrary to so much of what this country stands for,” he said.
He noted how even in the wake of the Civil War, “where 600,000 Americans killed one another in a contest of brother versus brother,” every rebel was repatriated within three years after the war ended.
“We’re still prosecuting people for participating in a four-hour riot on Jan. 6—two years later,” he asserted. “What the hell’s the matter with the Justice Department? The selective interpretation of the law, the stretching of the law to punish dissent, and the evidence in Mr. Lang’s case, will show that he was engaged in self-defense. Not offensive behavior. This is wrong. It’s going to take the Supreme Court to right the ship, and we hope it does.”
From The Epoch Times
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