First Cases From Jan. 6 Capitol Riot Reach US Supreme Court

Two men want the US Supreme Court to nix Capitol breach obstruction charges against them in the first Jan. 6 cases to reach the justices.

Edward Lang and Garrett Miller allegedly entered the Capitol grounds and wrestled police in an attempt to stop Congress from certifying the results of the 2020 presidential election in favor of Joe Biden, the Justice Department says.

The cases are among more than 200 in which the government is using an Enron-era statute to punish rioters, according to an amicus brief urging the justices to take up their claims.

At issue is whether a provision of the Sarbanes-Oxley Act, the 2002 law that grew out of the collapse of Enron Corp. and other corporate scandals, can be applied to the Capitol rioters who interrupted congressional proceedings, or whether the statute is confined to the destruction of documents or other evidence.

The petitions asking the Supreme Court to intervene seek to tap into what most on the court see as the overcriminalization of federal law and unfettered prosecutorial discretion.

In recent terms there’s been “a real vein of concern of overcriminalization,” said Lang’s attorney, Norman Pattis. “That same concern of stretching the law to capture ever broader species of alleged misconduct” should be a worry here.

Meaning of ‘Otherwise’

Former federal prosecutor and now-Columbia law professor Daniel Richman, said it would be “odd” for the justices to take up the cases now.

Neither Lang nor Miller have been found guilty of obstructing an official proceeding, and are instead asking the Supreme Court to nix the charges before they go to trial. The court typically is reluctant to get involved at such an early stage, Richman said.

More importantly, he said there’s no split among the federal courts of appeal, a hallmark of Supreme Court grants.

But nearly all of the Jan. 6 cases are being handled in the district court covered by the US Court of Appeals for the District of Columbia Circuit, meaning that a split on the issue is unlikely.

And while the overwhelming number of trial judges within the circuit have sided with the government, Pattis notes that the DC Circuit opinion giving rise to Miller’s and Lang’s appeals was itself split.

The law in question punishes anyone who “otherwise obstructs, influences, or impedes any official proceeding.” The government claims the language is broad enough to encompass the rioters, and two judges on the DC Circuit agreed. They were Florence Pan and Justin R. Walker, appointed by Joe Biden and Donald Trump, respectively.

“Under the most natural reading of the statute, § 1512(c)(2) applies to all forms of corrupt obstruction of an official proceeding,” Pan wrote for the court.

Miller and Lang argue the provision can’t be separated from the surrounding statutory provisions, which punishes an individual who “alters, destroys, mutilates, or conceals a record, document, or other object.”

Judge Gregory Katsas agreed in his dissent. The “government’s reading makes section 1512(c) implausibly broad and unconstitutional in a significant number of its applications,” the Trump appointee said.

The circuit panel also didn’t agree on the required mental state to be convicted. That is whether the defendant intended to gain a benefit through the obstruction or whether it’s enough that they intended to do something wrong.

“It is a cacophonous result that leaves unsettled significant issues,” Pattis said in his brief to the justices. The federal government has yet to respond. Its briefs are to be in by Oct. 2.

Tangible Object

The DC Circuit’s opinion “fits in with the problem of overbroad application of generally written statutes” that recent Supreme Court cases have highlighted, Pattis said.

The law carries a sentence of up to 20 years. Most, if not all, of the Jan. 6 defendants facing obstruction of an official proceeding charge also have been accused of other crimes, which often come with fewer penalties.

Attorney Theodore Cooperstein, who filed an amicus brief on behalf of other Jan. 6 defendants charged under the law, said the ruling turns the statute into a public-disorder law, even though there are already existing statutes that directly address those types of crime.

He pointed to several cases—some unanimous—in which “the Court has sought to narrow and corral these white-collar crime statutes.”

In 2015 in Yates v. United States, for example, the court considered whether a fisherman who threw a fish overboard to avoid law enforcement after an illegal catch could be convicted under a different law aimed at record and evidence destruction.

Similar to the argument Miller and Lang make, the court in Yates pared the statute to “limit the evidentiary focus to objects that can store data or recordkeeping,” Cooperstein said.

Although the relevant language,"tangible object,” could be read broadly to include fish, a majority of the court found that such a broad interpretation would cut the law “loose from its financial-fraud mooring.”

In doing so, the justices noted a ruling the other way would fail to give individuals notice of what conduct is considered unlawful. The fisherman in “Yates would have had scant reason to anticipate a felony prosecution,” Justice Ruth Bader Ginsburg wrote for the plurality in the 4-1-4 decision.

Such a vague ruling has the potential to chill perfect legal conduct, Pattis said.

But Richman said the cases, while somewhat similar, are “qualitatively different.”

“There’s a huge difference between taking a small fish and attacking the Capitol,” Richman said.