Lead felony charge against Jan.6 defendants could be unconstitutionally vague, U.S. judge warns

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https://www.washingtonpost.com/local/legal-issues/capitol-riot-charge-vague/2021/08/06/018b4cf8-f483-11eb-9068-bf463c8c74de_story.html

A federal judge has warned that the lead felony charge leveled by the government against Capitol riot defendants could be unconstitutionally vague, potentially putting convictions at risk of being overturned on appeal.

Moss’s remarks highlight the challenge prosecutors have faced in defining the most severe criminal conduct allegedly committed on Jan. 6. Prosecutors have employed the obstruction charge rather than sedition or insurrection counts in accusing at least 235 defendants of corruptly disrupting Congress’s certification of the 2020 electoral-college vote.

Moss led the Justice Department’s Office of Legal Counsel under President Bill Clinton and now chairs the federal judiciary’s Committee on Criminal Law. The concerns he raised highlight a long-standing debate over action taken by Congress as part of the Sarbanes-Oxley corporate responsibility act in 2002, when it broadly expanded an obstruction-of-justice statute to cover “whoever corruptly . . . obstructs, influences, or impedes any official proceeding.”

“This particular type of conduct I’m not aware of having been prosecuted under this statute before,” Pearce said. “But I also think what we saw on January 6th was unprecedented in scope and violence.”

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1. Bit more...

Lawyers familiar with the probe, in which more than 565 have been charged, say Moss’s fast-tracking of the question may help create legal certainty in the long run. But now it throws a wrench into plea talks between prosecutors and defendants if their counsels see a key charge on shaky footing. If so, prosecutors may be forced to turn to charges with weaker penalties — such as rioting or civil disorder, which some think fail to capture the severity of events — or re-indict defendants with more politically charged crimes such as seditious conspiracy.

University of Michigan law professor Barbara McQuade, a former federal prosecutor, called the argument raised by Moss “creative . . . but one that is not likely to prevail.”

“The word ‘corruptly’ has been previously defined by courts to limit the statute’s application to unlawful conduct with criminal intent,” McQuade said. “As long as that term is not unconstitutionally vague, it is up to juries to decide.”