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Second U.S. judge questions constitutionality of lead felony charge against Oath Keepers in Capitol riot
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Ubiquitous
Sep 16, 2021, 1:24:42 PM9/16/21
to
A second federal judge in Washington questioned whether the lead felony
charge leveled by the government against Capitol riot defendants is
unconstitutionally vague, as 18 Oath Keepers accused in a conspiracy case
urged the court on Wednesday to toss out a count carrying one of the heaviest
penalties against them.
U.S. District Judge Amit P. Mehta asked how federal prosecutors distinguish
felony conduct qualifying as “obstructing an official proceeding” of Congress
— punishable by up to 20 years in prison — from misdemeanor offenses the
government has charged others with, such as shouting to interrupt a
congressional hearing.
“Essentially, what you said is, ‘Trust us,’?” Mehta said. “.?.?. And that is
a real problem when it comes to criminal statutes, to suggest, ‘We know it
when we see it, and we’ll pick and choose when it is an appropriate exercise
of prosecutorial discretion.’?”
t issue is a statute the Justice Department has employed against at least 235
defendants accused of corruptly disrupting Congress’s certification of the
2020 electoral-college vote.
Prosecutors have brought the obstruction charge in many of the most notorious
cases, including against members of the Oath Keepers, Proud Boys and Three
Percenters groups who allegedly conspired and prepared in advance for
violence. The government has also leveled the charge against scores of
individuals not accused of attacking police or destroying property but facing
some of the most egregious allegations — such as occupying the Senate
chamber, sitting in the vice president’s chair and targeting government
officials.
Prosecutors have sought to distinguish such acts from protest-related civil
disobedience that rarely results in prison time and more politically charged
offenses such as sedition.
However, defendants in at least eight cases have moved to dismiss the count.
They assert that the joint House and Senate session that met Jan. 6 does not
qualify as an official proceeding of Congress; that the law is
unconstitutionally vague on its face or as applied; or that it does not cover
individuals’ alleged illegal actions, among other things.
The challenges rejoin a long-standing debate over what Congress meant when it
overhauled an obstruction-of-justice statute in 2002, when as part of the
Sarbanes-Oxley corporate responsibility act it broadly expanded a provision
to cover “whoever corruptly .?.?. obstructs, influences, or impedes any
official proceeding.”
The Justice Department has argued that Congress intended a broad “catchall”
provision for obstructive acts, passing Sarbanes-Oxley after a corporate
fraud crisis wiped out hundreds of billions of dollars of shareholder value,
including the early-2000s collapse of Enron Corp. and accounting giant Arthur
Andersen.
Congress’s whole point in enacting such general clauses is to cover “matters
not specifically contemplated,” because lawmakers do “not know what inventive
criminal minds” might come up with in the future, Assistant U.S. Attorney
Jeffrey S. Nestler said in the hearing Wednesday.
But some legal scholars question whether the expansion applies only to
financial fraud or to traditional obstruction-of-justice crimes such as
destroying documents.
As U.S. District Judge Randolph D. Moss did last month, Mehta noted that the
Supreme Court in 2015 rejected an expansive reading of a related law,
tossing the conviction of a Florida fisherman who destroyed smaller-than-20
-inch red grouper to impede U.S. wildlife inspectors. The court ruled that
when Congress barred the destruction of any “tangible object,” it meant
documentary evidence, not fish.
“It seems to me — and I say this after having thought about this a fair
amount — this statute potentially suffers from the same problems,” Mehta
said.
Mehta, who was appointed to the U.S. District Court for the District of
Columbia in 2014, said he could easily follow the high court’s plurality
opinion and toss out the charge. Like Moss, Mehta said the government must be
able to put individuals clearly on notice how “corruptly” obstructing or
influencing Congress differs from ordinary trespassing, parading or
disorderly conduct in the Capitol — lesser charges that are punishable by no
more than six months in prison.
“The million-dollar question is: What’s the limiting principle?” Mehta said,
suggesting the statute “clearly brings in innocent conduct,” encompassing
anyone seeking to influence Congress.
Nestler cited two — that the statute targets only those who act “corruptly,”
which he argued is an established question for juries to decide, and actions
with a “nexus” or tie to a defined proceeding.
Nestler agreed that it is not a crime punishable by up to 20 years to stand
and shout “Stop this proceeding!” at a congressional confirmation hearing —
but argued that it is if one adds, “There’s a bomb under your chairs!”
“The objective here was not just to halt proceedings. The objective here was
to scare Congress into halting proceedings,” Nestler said, likening the act
to obstructing justice by raiding a courthouse or courtroom and forcing
judges and jurors to flee a trial.
Still, Mehta protested, “Scaring the daylights out of everyone in the House
or Senate .?.?. to me is very different than destroying evidence or
intimidating witnesses.”
“That’s what the government intends to prove at trial,” Nestler replied, that
these defendants acted corruptly “because they intended to intimidate
Congress.”
Defense attorney David Fischer, arguing for Navy veteran Thomas Caldwell of
Berryville, Va., objected that interrupting an electoral-vote certification
was different from obstructing justice.
“It would be like someone interrupting a congressional declaration of war,”
Fischer said. “That’s a very serious event, but it’s not obstruction of
justice.”
Attorney Carmen D. Hernandez, defending Donovan Crowl, a member of a self-
styled militia group in Ohio, argued that if the government’s “catchall”
interpretation of the law were correct, “that’s the only statute you would
need for obstruction.”
Moss and Mehta are the only judges who have heard arguments on the question,
promising to rule quickly after receiving additional briefings over the next
month. Near the end of Wednesday’s two-hour argument, Mehta concluded, “I
don’t want this to sit very long.”
At the outset of Wednesday’s hearing, defense attorney Bradford Geyer of New
Jersey said he had been retained by the family of one of the co-defendants,
Army veteran Kenneth Harrelson of Brevard County, Fla., to replace John M.
Pierce, an attorney who represents 17 riot defendants but who had not been
appearing in court. His associates at one point said he had contracted the
coronavirus.
Pierce reemerged an hour before the Oath Keepers hearing in another case,
however, filing a notice in Harrelson’s case explaining that he had been
incommunicado since Aug. 23 because he had spent 12 days in the hospital
before being released Sunday. Pierce did not elaborate on why he was
hospitalized and said he expects to be “fully operational next week.”
“I was not ‘missing’ or anything of the sort,” Pierce wrote.
Geyer said that he did not know and has not spoken with Pierce nor anyone he
worked with and that the Harrelsons told him to go forward as best he could.
--
Trump won.
charge leveled by the government against Capitol riot defendants is
unconstitutionally vague, as 18 Oath Keepers accused in a conspiracy case
urged the court on Wednesday to toss out a count carrying one of the heaviest
penalties against them.
U.S. District Judge Amit P. Mehta asked how federal prosecutors distinguish
felony conduct qualifying as “obstructing an official proceeding” of Congress
— punishable by up to 20 years in prison — from misdemeanor offenses the
government has charged others with, such as shouting to interrupt a
congressional hearing.
“Essentially, what you said is, ‘Trust us,’?” Mehta said. “.?.?. And that is
a real problem when it comes to criminal statutes, to suggest, ‘We know it
when we see it, and we’ll pick and choose when it is an appropriate exercise
of prosecutorial discretion.’?”
t issue is a statute the Justice Department has employed against at least 235
defendants accused of corruptly disrupting Congress’s certification of the
2020 electoral-college vote.
Prosecutors have brought the obstruction charge in many of the most notorious
cases, including against members of the Oath Keepers, Proud Boys and Three
Percenters groups who allegedly conspired and prepared in advance for
violence. The government has also leveled the charge against scores of
individuals not accused of attacking police or destroying property but facing
some of the most egregious allegations — such as occupying the Senate
chamber, sitting in the vice president’s chair and targeting government
officials.
Prosecutors have sought to distinguish such acts from protest-related civil
disobedience that rarely results in prison time and more politically charged
offenses such as sedition.
However, defendants in at least eight cases have moved to dismiss the count.
They assert that the joint House and Senate session that met Jan. 6 does not
qualify as an official proceeding of Congress; that the law is
unconstitutionally vague on its face or as applied; or that it does not cover
individuals’ alleged illegal actions, among other things.
The challenges rejoin a long-standing debate over what Congress meant when it
overhauled an obstruction-of-justice statute in 2002, when as part of the
Sarbanes-Oxley corporate responsibility act it broadly expanded a provision
to cover “whoever corruptly .?.?. obstructs, influences, or impedes any
official proceeding.”
The Justice Department has argued that Congress intended a broad “catchall”
provision for obstructive acts, passing Sarbanes-Oxley after a corporate
fraud crisis wiped out hundreds of billions of dollars of shareholder value,
including the early-2000s collapse of Enron Corp. and accounting giant Arthur
Andersen.
Congress’s whole point in enacting such general clauses is to cover “matters
not specifically contemplated,” because lawmakers do “not know what inventive
criminal minds” might come up with in the future, Assistant U.S. Attorney
Jeffrey S. Nestler said in the hearing Wednesday.
But some legal scholars question whether the expansion applies only to
financial fraud or to traditional obstruction-of-justice crimes such as
destroying documents.
As U.S. District Judge Randolph D. Moss did last month, Mehta noted that the
Supreme Court in 2015 rejected an expansive reading of a related law,
tossing the conviction of a Florida fisherman who destroyed smaller-than-20
-inch red grouper to impede U.S. wildlife inspectors. The court ruled that
when Congress barred the destruction of any “tangible object,” it meant
documentary evidence, not fish.
“It seems to me — and I say this after having thought about this a fair
amount — this statute potentially suffers from the same problems,” Mehta
said.
Mehta, who was appointed to the U.S. District Court for the District of
Columbia in 2014, said he could easily follow the high court’s plurality
opinion and toss out the charge. Like Moss, Mehta said the government must be
able to put individuals clearly on notice how “corruptly” obstructing or
influencing Congress differs from ordinary trespassing, parading or
disorderly conduct in the Capitol — lesser charges that are punishable by no
more than six months in prison.
“The million-dollar question is: What’s the limiting principle?” Mehta said,
suggesting the statute “clearly brings in innocent conduct,” encompassing
anyone seeking to influence Congress.
Nestler cited two — that the statute targets only those who act “corruptly,”
which he argued is an established question for juries to decide, and actions
with a “nexus” or tie to a defined proceeding.
Nestler agreed that it is not a crime punishable by up to 20 years to stand
and shout “Stop this proceeding!” at a congressional confirmation hearing —
but argued that it is if one adds, “There’s a bomb under your chairs!”
“The objective here was not just to halt proceedings. The objective here was
to scare Congress into halting proceedings,” Nestler said, likening the act
to obstructing justice by raiding a courthouse or courtroom and forcing
judges and jurors to flee a trial.
Still, Mehta protested, “Scaring the daylights out of everyone in the House
or Senate .?.?. to me is very different than destroying evidence or
intimidating witnesses.”
“That’s what the government intends to prove at trial,” Nestler replied, that
these defendants acted corruptly “because they intended to intimidate
Congress.”
Defense attorney David Fischer, arguing for Navy veteran Thomas Caldwell of
Berryville, Va., objected that interrupting an electoral-vote certification
was different from obstructing justice.
“It would be like someone interrupting a congressional declaration of war,”
Fischer said. “That’s a very serious event, but it’s not obstruction of
justice.”
Attorney Carmen D. Hernandez, defending Donovan Crowl, a member of a self-
styled militia group in Ohio, argued that if the government’s “catchall”
interpretation of the law were correct, “that’s the only statute you would
need for obstruction.”
Moss and Mehta are the only judges who have heard arguments on the question,
promising to rule quickly after receiving additional briefings over the next
month. Near the end of Wednesday’s two-hour argument, Mehta concluded, “I
don’t want this to sit very long.”
At the outset of Wednesday’s hearing, defense attorney Bradford Geyer of New
Jersey said he had been retained by the family of one of the co-defendants,
Army veteran Kenneth Harrelson of Brevard County, Fla., to replace John M.
Pierce, an attorney who represents 17 riot defendants but who had not been
appearing in court. His associates at one point said he had contracted the
coronavirus.
Pierce reemerged an hour before the Oath Keepers hearing in another case,
however, filing a notice in Harrelson’s case explaining that he had been
incommunicado since Aug. 23 because he had spent 12 days in the hospital
before being released Sunday. Pierce did not elaborate on why he was
hospitalized and said he expects to be “fully operational next week.”
“I was not ‘missing’ or anything of the sort,” Pierce wrote.
Geyer said that he did not know and has not spoken with Pierce nor anyone he
worked with and that the Harrelsons told him to go forward as best he could.
--
Trump won.
BeamMeUpScotty
Sep 16, 2021, 2:59:12 PM9/16/21
to
On 9/14/21 9:05 PM, Ubiquitous wrote:
> A second federal judge in Washington questioned whether the lead felony
> charge leveled by the government against Capitol riot defendants is
> unconstitutionally vague, as 18 Oath Keepers accused in a conspiracy case
> urged the court on Wednesday to toss out a count carrying one of the heaviest
> penalties against them.
>
> U.S. District Judge Amit P. Mehta asked how federal prosecutors distinguish
> felony conduct qualifying as “obstructing an official proceeding” of Congress
> — punishable by up to 20 years in prison — from misdemeanor offenses the
> government has charged others with, such as shouting to interrupt a
> congressional hearing.
>
> “Essentially, what you said is, ‘Trust us,’?” Mehta said. “.?.?. And that is
> a real problem when it comes to criminal statutes, to suggest, ‘We know it
> when we see it, and we’ll pick and choose when it is an appropriate exercise
> of prosecutorial discretion.’?”
>
> t issue is a statute the Justice Department has employed against at least 235
> defendants accused of corruptly disrupting Congress’s certification of the
> 2020 electoral-college vote.
>
Using their own definition, when Democrats obstruct any government
> A second federal judge in Washington questioned whether the lead felony
> charge leveled by the government against Capitol riot defendants is
> unconstitutionally vague, as 18 Oath Keepers accused in a conspiracy case
> urged the court on Wednesday to toss out a count carrying one of the heaviest
> penalties against them.
>
> U.S. District Judge Amit P. Mehta asked how federal prosecutors distinguish
> felony conduct qualifying as “obstructing an official proceeding” of Congress
> — punishable by up to 20 years in prison — from misdemeanor offenses the
> government has charged others with, such as shouting to interrupt a
> congressional hearing.
>
> “Essentially, what you said is, ‘Trust us,’?” Mehta said. “.?.?. And that is
> a real problem when it comes to criminal statutes, to suggest, ‘We know it
> when we see it, and we’ll pick and choose when it is an appropriate exercise
> of prosecutorial discretion.’?”
>
> t issue is a statute the Justice Department has employed against at least 235
> defendants accused of corruptly disrupting Congress’s certification of the
> 2020 electoral-college vote.
>
action in any way, it's a felony.
Be careful what you wish for....
That's karma
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you hate.
Censorship is HATE personified... Hate groups use censorship to help
force those they hate to be gagged and silenced and canceled.
Censorship becomes a systemic hate crime and a form of SLAVERY when it's
illegally forced on American citizens. TWITTER'S censorship is enslaving
Blacks.
Censorship of this document in whole or part, is an admission of your
belonging to a VIOLENT HATE GROUP.
Ubiquitous
Sep 19, 2021, 10:21:06 AM9/19/21
to
A second federal judge in Washington questioned whether the lead felony
charge leveled by the government against Capitol riot defendants is
unconstitutionally vague, as 18 Oath Keepers accused in a conspiracy
case urged the court on Wednesday to toss out a count carrying one of
the heaviest penalties against them.
U.S. District Judge Amit P. Mehta asked how federal prosecutors
distinguish felony conduct qualifying as “obstructing an official
proceeding” of Congress — punishable by up to 20 years in prison — from
misdemeanor offenses the government has charged others with, such as
shouting to interrupt a congressional hearing.
“Essentially, what you said is, ‘Trust us,’?” Mehta said. “.?.?. And
that is a real problem when it comes to criminal statutes, to suggest,
‘We know it when we see it, and we’ll pick and choose when it is an
appropriate exercise of prosecutorial discretion.’?”
At issue is a statute the Justice Department has employed against at
charge leveled by the government against Capitol riot defendants is
unconstitutionally vague, as 18 Oath Keepers accused in a conspiracy
case urged the court on Wednesday to toss out a count carrying one of
the heaviest penalties against them.
U.S. District Judge Amit P. Mehta asked how federal prosecutors
distinguish felony conduct qualifying as “obstructing an official
proceeding” of Congress — punishable by up to 20 years in prison — from
misdemeanor offenses the government has charged others with, such as
shouting to interrupt a congressional hearing.
“Essentially, what you said is, ‘Trust us,’?” Mehta said. “.?.?. And
that is a real problem when it comes to criminal statutes, to suggest,
‘We know it when we see it, and we’ll pick and choose when it is an
appropriate exercise of prosecutorial discretion.’?”
least 235 defendants accused of corruptly disrupting Congress’s
certification of the 2020 electoral-college vote.
certification of the 2020 electoral-college vote.
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