Prosecutors and defense lawyers squared off on Monday at a federal appeals court hearing in Washington over the use of a criminal charge whose viability could affect the cases of hundreds of people indicted in connection with the Jan. 6, 2021, attack on the Capitol — and could help decide what, if any, charges could ultimately be brought against former President Donald J. Trump.
The charge at the center of the arguments before the U.S. Court of Appeals for the District of Columbia was the obstruction of an official proceeding before Congress.
The Justice Department has used the count in scores of Capitol riot cases to describe how a pro-Trump mob disrupted the central event on Jan. 6: the certification of the 2020 election that took place during a joint session of Congress.
Defense lawyers want the appeals court to rule that the count has been applied incorrectly by the Justice Department and dismiss it from all the Jan. 6 cases in which it has been charged….
The charge — formally known in the penal code as 18 U.S.C. 1512(c)(2) — was never a perfect fit for the many cases stemming from the Capitol attack. It was passed into law as part of the 2002 Sarbanes-Oxley Act, which sought to clamp down on corporate malfeasance.
The measure was initially intended to prohibit things like shredding documents or tampering with witnesses in congressional inquiries. Defense lawyers in dozens of Capitol riot cases have challenged its applicability, arguing that prosecutors had stretched the statute beyond its scope and used it to criminalize behavior that too closely resembled protest protected by the First Amendment.
One judge on the appeals court panel, Gregory G. Katsas, appeared to agree with this argument. Judge Katsas, who was appointed by Mr. Trump, said the government’s interpretation of the law seemed to establish a “new conception of obstruction wholly divorced from evidence tampering.”
But another Trump-appointed member of the panel, Judge Justin R. Walker, left open the possibility that the government had used the charge properly. Judge Walker noted that while lesser charges have often been used to punish people who have demonstrated at other events at the Capitol, what happened on Jan. 6 could not be thought of as “normal protest.”
The third judge on the panel, Florence Y. Pan, appointed by President Biden, seemed to side with the government throughout the hearing.