Hundreds of prosecutions in the Jan. 6, 2021, Capitol riot are hanging in the balance as a panel of federal judges decide the constitutionality of the Justice Department’s lead felony charge. Three judges on the U.S. Court of Appeals for the D.C. Circuit will decide the scope of a felony obstruction charge that members of Congress and a federal judge have suggested could be used to prosecute former president Trump. Two of the judges were appointed by Trump, the other by President Biden. The law punishes “whoever corruptly alters, destroys, mutilates or conceals a record, document or other object … or otherwise obstructs, influences or impedes any official proceeding.” Prosecutors have used the charge against nearly 300 people they say intentionally tried to delay, prevent or block Congress from counting electoral votes as required on Jan. 6, such as by entering sensitive areas like the Senate chamber, the Washington Post reports.
Three members of the far-right Oath Keepers group were acquitted of engaging in a seditious conspiracy, which requires a plan to use force against the government, but convicted of obstructing an official proceeding. Four more Oath Keepers are starting trial this week; leaders in the Proud Boys face trial on similar charges in January. The obstruction law was written after the Enron scandal, when the company’s accountants shredded potentially incriminating documents, an action not covered by the federal witness tampering law. Defendants argue that the law is limited to interfering with the evidence in an investigation. All but one federal judge to rule on the question has agreed with the government that the law can be read to include what happened on Jan. 6. However, Judge Carl Nichols, ruled that the crime must involve not just evidence but also specifically “some action with respect to a document, record, or other object.” Nichols threw out the charge for one man as a result. Judges Gregory Katsas and Justin Walker, both Trump appointees, suggested Monday that the use of the word “corruptly” might be unconstitutionally broad, a question Nichols did not address. “Why wouldn’t that pick up the person that’s just sitting in the gallery and starts shouting?” Katsas asked.