Judge raises doubts about obstruction charges in Jan. 6 cases

Friedrich, an agent for President Donald Trump, appeared to be seriously considering the number of disabilities – which carries a maximum prison sentence of 20 years – in the case of Guy Reffitt, who is charged with confronting an officer outside the Capitol and a firearm to bring with you, to be turned away on the premises.

Such a decision would almost certainly result in this charge being dismissed in other cases it handles and could affect similar decisions in other cases against participants on Jan. 6. In many cases, the charge of disability is the most serious issue that the defendants face.

It comes down to the Justice Department’s decision to hit the Jan 6th defendants on criminal charges that are more commonly applied to alleged intimidation of a witness, jury or judge, or to the destruction of records or evidence.

The crime is usually described in court records and news reports as an obstruction to justice, but prosecutors turned to them to indict alleged Capitol riot participants because it technically applies to efforts to thwart any “official process” by the federal government. This also includes the counting of the votes of the electoral college on January 6, which the legislature is constitutionally obliged to carry out, claims the DOJ.

The grand jury’s indictments accuse many suspected Capitol riot participants of attempting to disrupt this process.

But defense lawyers for some suspected rioters argue that the provision – and its maximum prison sentence of a whopping two decades – does not apply outside the justice system. They state that a word in law, “corrupt”, seems easy to understand in connection with threatened witnesses or shredded documents, but has no clear legal meaning in relation to a physical disorder that causes a Congressional process to be dissolved or delayed .

The issue came to a head at a Reffitt hearing on Friday. Reffitt’s attorney, William Welch, has asked Friedrich to dismiss the disability charge.

During the hearing, Friedrich seemed to agree that the cited obstruction law was ill-suited to the attack on the Capitol, especially because of its focus on “corrupt acts”.

“This is a vague, undefined word,” said Friedrich about the law’s reference to corrupt intentions.

“When you look at such an undefined term, which you interpret so broadly … you are basically saying that the meaning of corrupt is wrong,” Friedrich told prosecutor Jeffrey Nestler. “You are essentially asking the jury to make a moral judgment on what is wrong here.”

Friedrich repeatedly alleged that prosecutors could have brought another disability-related harassment-related charge aimed at delaying or preventing someone from going through an official trial. This charge has a maximum prison sentence of three years.

“I don’t understand why you didn’t charge that,” said the judge, noting that there was no need to show any corrupt intentions.

Nestler said he believed Reffitt could have been charged with the harassment, but prosecutors picked the one who had to show corruption. He said the Supreme Court defined corrupt behavior as “wrong, immoral, depraved or evil”.

But Friedrich said she was not comfortable asking juries to pass a judgment that sounds more moral than factual.

“What does that mean? Have the jury decide what is bad?” She asked. “Every other time, historically, Congress has used the word ‘corrupt’, it was a different way.”

What exactly would happen if Friedrich knocked out the prosecution is difficult to predict. Other judges would not have to follow their verdict, although they would likely consider it.

A final settlement of the matter by the DC Circuit Court of Appeals could be difficult to achieve in a timely manner as it is difficult for the government to obtain a review of the verdicts of judges who deny an individual charge rather than an entire case.

Prosecutors could choose to preemptively re-indict cases to add the lesser charge of harassment.

It’s also unclear how much benefit a decision that removes obstruction to Congressional indictment against Reffitt would do to him, as he faces several other charges as well, including the threat of shooting his son and daughter if they whistled about his activities in the Capitol on January 6th. Prosecutors filed a single, more traditional charge of obstruction of justice for these alleged threats. Theoretically, he could face up to 20 years in prison for this alone.

Defense attorneys, including Welch, are also pursuing other arguments against the charges, including the allegation that the January 6 joint session of Congress was not an official process for the purposes of the Statute.

However, Friedrich told the public prosecutor on Friday that she agreed with them on this point.

“I’ll buy your arguments there,” she said.

Friedrich did not decide on the pending application on Friday, but gave the public prosecutor’s office until November 29 to present their position in writing.

Kyle Cheney contributed to this report.

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