A slew of individuals convicted for various charges directly related to their involvement in the January 6, 2021, riot are seeking appeals based on a law that could ultimately comprise a major aspect of Donald Trump's trial defense.
Trump was charged with four crimes associated with January 6, including obstruction of an official proceeding. The obstruction charge is being focused on by the January 6 defendants' legal counsel as a maneuver for the Supreme Court to weigh in and potentially rule in their favor and eventual dismissal.
At least 310 cases involving alleged January 6 participants include that same charge, most notably already used against high-profile individuals who were already convicted and sentenced including Oath Keepers leader Stewart Rhodes and "QAnon Shaman" Jacob Chansley.
The obstruction charge is tied to the bipartisan Sarbanes-Oxley Act passed by Congress in 2002 after major scandals including Enron. Prosecutors in January 6-related cases have referenced this act, notably Section 1512.
Title 18, Section 1512 of the U.S. Code, called "Tampering with a Witness, Victim, or Informant" provides that an individual who "corruptly alters, destroys, mutilates, or conceals a record, document" or "otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so" can be imprisoned for up to 20 years.
Garret Miller, of Richardson, Texas, was charged on January 20, 2021, and later pleaded guilty to 11 crimes including assaulting or resisting officers, threats to injure and kidnap, disorderly conduct inside the Capitol, and obstruction of an official proceeding.
He also threatened to assassinate Democratic Representative Alexandria Ocasio-Cortez. On February 23 of this year, Miller was sentenced in the District of Columbia to 38 months in prison.
A petition for a writ of certiorari filed August 30 on Miller's behalf argues: "Vagueness in the government's [application of Section 1512] has created chaos in the administration of justice across hundreds of January 6 cases."
"Hundreds of protesters who entered the Capitol Building that day have been charged solely with a parading, picketing or demonstrating offense, a Class B misdemeanor with a six-month maximum sentence, while hundreds of others who did the same thing, like Petitioner, have been charged with felony obstruction," the petition reads.
It also warns of setting a bad precedent moving forward: "It is not enough to point out that the vagueness inherent in this new crime against Congress would invite—has perhaps already invited—the politicization of criminal justice."
Craig Trocino, a law professor at the University of Miami, told Newsweek that the argument made by Miller and others charged in the district courts is that the language in the statute is ambiguous enough to qualify for a motion to dismiss.
"The problem in general with a motion to dismiss on these grounds is they're rarely granted," Trocino said. "And they're rarely granted, not because courts are indifferent to them, but the law on motions to dismiss under these circumstances is very limited because the case law says that the court's authority to dismiss an indictment based on these grounds encroaches on the fundamental role of [a] grand jury, and therefore they should only be granted in unusual circumstances."
He said, in his view, the district court in the Miller case "engaged in a rather strained analysis of parsing out that paragraph and the words that come after 'otherwise.'" He pointed to the 14 different district court judges in D.C. who read the language the same way.
"Factually, it appears that Mr. Miller entered into the Capitol building, I believe he admitted to that when it was closed for public traffic," Trocino said. "Either he forced his way in or went in after somebody else forced his way. Either way, he was there in violation of the law and that is a corruption, otherwise obstructing, influencing or impeding any official proceeding."
Edward Lang of New York was also charged and his attorneys also have petitioned the Supreme Court to weigh in on that specific charge while arguing that it has been applied too broadly.
"Under the Justice Department's current reading and use of 1512, I expect the department will bring this charge against Trump," Norm Pattis, Lang's lawyer, previously told Newsweek. "Of course, that makes the First Amendment issues even more profound. The president made a political judgment about a stolen election: criminalizing that and calling it corrupt would turn a dark page in our history."
Arguing about vagueness and the statute itself being unlawful and casting too wide a net is one that defense lawyers have to make, Trocino said.
"But looking at the particular facts that are covered here, it doesn't seem to me that any citizen would think charging into the Capitol during a joint session of Congress in order to disrupt it when the Capitol is closed to the public at the moment, would not be covered under the statute," he added.
He expects Trump's legal defense team to make similar arguments to that of Pattis and others, to dismiss on similar grounds. The question is whether the Supreme Court's nine justices will listen to the argument.
The U.S. Supreme Court jurisdiction in these cases is typically referred to as discretionary jurisdiction, Trocino said, so even if they have it they don't have to exercise it. In order to exercise jurisdiction, there has to be a difference in circuit courts of appeals on the issue or a really important case with national consequences.
Miller could be arguing the latter, that there are many defendants in the situation and it's of national importance and the Supreme Court should take the case.
"I don't see that they do under these circumstances, but you never know," he said. "It would be difficult to see them taking it on a motion to dismiss, given the standard law, the established law that says district courts should not grant motions to dismiss unless it's an unusual circumstance.
"And the application of this particular statute, to those particular facts, don't in my opinion strike me as terribly unusual."
Newsweek reached out to Miller's lawyer via email for comment.
