A federal judge ruled late Monday that the Justice Department cannot charge Jan. 6 defendants with obstructing Congress’s certification of President Biden’s 2020 election victory unless they tampered with official documents or records in the attack on the U.S. Capitol.
In striking down the lead charge brought in the government’s Jan. 6 investigation — punishable by up to 20 years in prison — U.S. District Judge Carl Nichols broke with all other U.S. trial judges in Washington who have ruled on the question in Capitol riot cases. The decision throws a wrench pending appeal into the felony prosecutions of as many as 275 arrested individuals.
Nichols wrote in a 29-page opinion that federal prosecutors erroneously interpreted a “catchall” provision Congress passed when it overhauled a long-standing obstruction-of-justice statute as part of the Sarbanes-Oxley corporate responsibility act in 2002.
The provision covers “whoever corruptly . . . obstructs, influences, or impedes any official proceeding.” But Nichols ruled that passage “must be interpreted as limited by [the preceding] subsection” — requiring a defendant to “have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.” Raiding the Capitol and forcing lawmakers to flee or wrongly trying to halt vote counting does not apply to that interpretation, the judge said.
Nichols dismissed 1 of 12 counts against Garret A. Miller, a North Texas man who allegedly bragged about storming the Capitol and threatened lawmakers and police on social media. He is accused of stating “Assassinate AOC” in response to a tweet by Rep. Alexandria Ocasio-Cortez (D-N.Y.) calling for President Donald Trump’s impeachment.
Nichols’s reasoning is likely to apply to the cases of at least seven other defendants who are before him on the same charge. One other, Beverly Hills spa owner Gina Bisignano, awaits sentencing after pleading guilty in a deal with prosecutors.
Other U.S. trial judges in Washington are not bound by the decision from Nichols, a 2019 Trump appointee who served in the Justice Department’s civil division under President George W. Bush and clerked for Supreme Court Associate Justice Clarence Thomas. At least seven judges have previously rejected the same defense motion. Given the novel application of the law and the high stakes of the Jan. 6 probe, a certain government appeal could send the question to the U.S. Court of Appeals for the District of Columbia Circuit and eventually to the U.S. Supreme Court, legal experts said.
Other defendants, however, may be leery of entering plea deals admitting to the charge, defense attorneys said, even as the case of the first Jan. 6 defendant to face trial went to a jury Tuesday, with Guy Wesley Reffitt facing that count among five felony charges.
The ruling also has broader implications. Rep. Liz Cheney (R-Wyo.) has suggested Trump could be charged with obstruction of an official proceeding, as has the House select committee investigating the Jan. 6 events — although in Trump’s case, allegedly with regard to the counting of electoral college votes.
Miller’s attorneys, Camille Wagner of Washington and Clinton Broden of Dallas, did not immediately respond to a request for comment, nor did a spokesman for the U.S. attorney’s office for D.C., which is overseeing Capitol breach prosecutions.
In an indictment and court filings, prosecutors assert that Miller, 35, predicted the likelihood of violence on Jan. 6, 2021. Authorities also accuse him of pushing past police to enter the Capitol, making various incriminating statements and posting on social media videos and pictures taken inside the building.
Miller has pleaded not guilty. Nichols said he has rejected a defense motion claiming Miller was a victim of selective government prosecution and seeking his release from jail pending trial. He has been held since his Jan. 20, 2021, arrest in Richardson, Tex.
At issue is an obstruction charge carrying some of the heaviest penalties leveled against nearly 300 defendants, including associates of the Oath Keepers, Proud Boys and Three Percenters, far-right groups that allegedly conspired and prepared for violence. The government has also brought the charge against scores of individuals not accused of attacking police or destroying property but facing some of the most egregious allegations — such as occupying the Senate chamber, sitting in the vice president’s chair and targeting government officials.
Defendants in well over a dozen cases assert that the joint House and Senate session that met Jan. 6 does not qualify as an official proceeding of Congress. They also argue that the law is unconstitutionally vague because it fails to put individuals clearly on notice as to how “corruptly” obstructing or influencing Congress differs from misdemeanor trespassing, parading or disorderly conduct in the Capitol. Defendants have also said that among what they say are defects in the law, it does not cover individuals’ alleged illegal actions.
Before Monday, all of at least seven judges who have ruled to date accepted Justice Department arguments that Congress intended a broad “catchall” provision for obstructive acts after the exposure of a massive corporate fraud in the early 2000s wiped out hundreds of billions of dollars of shareholder value, triggered by the collapse of Enron and the revelation that Enron’s outside auditor, the accounting giant Arthur Andersen, systematically destroyed potentially incriminating documents.
Congress’s whole point in enacting such general clauses is to cover “matters not specifically contemplated,” because lawmakers do “not know what inventive criminal minds” might come up with in the future, Assistant U.S. Attorney Jeffrey S. Nestler has said.
But some legal scholars have long asked whether the expansion applies only to financial fraud or to traditional obstruction-of-justice crimes such as destroying documents.
The Supreme Court in 2015 rejected an expansive reading of a related law, overturning the conviction of a Florida fisherman who destroyed smaller-than-20-inch red grouper to impede U.S. wildlife inspectors. The court ruled that when Congress barred the destruction of any “tangible object,” it meant documentary evidence, not fish — a case cited by Nichols.
“Congress was faced with a very specific loophole: that then-existing criminal statutes made it illegal to cause or induce another person to destroy documents, but did not make it illegal to do so by oneself,” Nichols said, referring to Arthur Anderson’s actions. In passing that portion of the law, Congress closed the loophole, but “nothing in the legislative history suggests a broader purpose than that,” Nichols said.
The judge said prosecutors never accused Miller of tampering with records, and he dismissed the obstruction charge without prejudice, meaning the government can recharge Miller if other evidence emerges.
