Prosecutorial overreach is not uncommon in high-profile cases. The prosecutors pile on the charges to frighten defendants with the prospect of long prison terms so they plead out. The state also hopes to throw enough charges against the wall to see what sticks.
But the danger of overreach is that a judge may want to smack a prosecutor down for bringing unnecessary charges. Such is the case in the January 6 prosecutions.
One of the rioters, Edward Lang, is facing 11 charges and pleaded not guilty to all of them. But a district court judge threw out the charges relating to “obstruction of an official proceeding” concerning Lang and two others accused of violence at the Capitol.
The law in question sentences a guilty party to up to 20 years in prison for anyone who “corruptly alters, destroys, mutilates, or conceals a record, document,” or “otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so.” Lang is questioning whether the Sarbanes-Oxley statute fits the behavior of hundreds of rioters.
Sarbanes-Oxley was passed in response to financial malfeasance in the 2002 bankruptcies of telecom giant Worldcom and Enron, an energy company based in Houston. Lang argues that the obstruction defined in Sarbanes-Oxley bears no relationship to the violence that occurred on January 6, 2021.
The panel of the United States Appeals Court for the District of Columbia, though, by a 2-to-1 margin, upheld the use of the obstruction charge, deciding that Judge Nichols’s reading was too cramped. Judge Pan, writing for the majority, ruled that the “broad interpretation of the statute — encompassing all forms of obstructive acts — is unambiguous and natural.”
The request for a hearing before the Nine asks whether the statute, intended to clamp down on financial malfeasance, “can be used to prosecute acts of violence against police officers in the context of a public demonstration that turned into a riot.” Mr. Lang argues that a “statute intended to combat financial fraud has been transformed into a blatant political instrument to crush dissent.”
Lang’s petition before the high court warns that a “revolution is underway, with ambitious federal prosecutors 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.” The petition says there’s no need to “create a new and novel application of a statute to capture the violence that took place that day.”
Lang argues that the obstruction must be done “corruptly,” which doesn’t appear to be the case in his prosecution. And finally, Lang warns that this prosecutorial strategy “will serve to chill political speech and expression on the eve of one of the most consequential events in American life — the election of the next President of the United States.” He says it “falls to this Court to rein in the Department of Justice.”
It’s easy to argue that there is a certain amount of vindictiveness in many of these prosecutions. The question facing the court will be, did prosecutors go too far in fashioning a legal argument to prosecute based on a loose interpretation of a statute that was never meant to cover violence during a riot?
Courts are reluctant to rein in prosecutors, but in this case, there’s a chance the Supreme Court might look to cut the DoJ’s misused freedom of action and bring them down a peg.
For some rioters, it could mean the difference between prison and freedom. For others, taking a 20-year sentence off the table will be, if nothing else, a relief.
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