*Bradley Rosen
I. The Attack on the Capitol
On January 6, 2021, a mob stormed the United States Capitol to stop Congress from “certifying the vote count of the Electoral College of the 2020 Presidential Election.”[1] Fortunately, the mob failed in its mission, but it nonetheless succeeded in delaying the vote by causing the Capitol to temporarily enter a lockdown until the building was secure.[2] The Justice Department described the criminal probe as the largest in American history, both in the number of defendants charged as well as in the nature and quantity of evidence gathered.[3] So far, more than 500 defendants have been charged in connection with the attack, with offenses ranging from misdemeanors to felonies.[4]
II. The Charges Against Defendants
Despite the violent efforts to stop the democratic process, rioters did not face charges of “treason” or “seditious conspiracy.”[5] Instead, allegations against the rioters include civil disorder, assaulting federal officers, disorderly conduct in a Capitol building, and parading in a Capitol building.[6] The difficulty for prosecutors, however, lies in levying appropriate charges against nonviolent defendants who entered the Capitol, but who are otherwise first‑time offenders who were swept into the mob mentality.[7]
In an attempt to reconcile the atrocity while charging defendants for their individual actions, federal prosecutors resolved to focus on the real motivation for the attack: “disrupting the democratic process.”[8] Prosecutors’ novel application of the obstruction statute, which makes it a felony to corruptly obstruct any official proceeding, reflects this delicate balance.[9] The statute provides for a sentence of up to twenty years in prison.[10] Under the statute, the Justice Department has charged more than 200 individuals,hoping to establish a “strong deterrent” for “anyone pondering a future assault on the country’s democratic institutions.”[11]
III. The Issue with the “Obstruction” Charge
The issue with such a charge lies in the language of the statute as well as its application to the defendants’ conduct. The American public is unlikely to see the issue resolved in the near future, as federal judge Randolph D. Moss suggests it may be years before such defendants go to trial.[12] According to Judge Moss, the issue is “constitutional vagueness,” or rather, that prosecutors must articulate the difference between “corruptly” obstructing Congress—a felony—and garden-variety misdemeanor trespassing, such as “shouting to interrupt a congressional hearing.”[13] Arguing that “corruptly” is the “limiting principle,” prosecutors suggest that the law requires both an “intent to obstruct” and “wrongfulness” by the defendant.[14]
In Arthur Andersen LLP v. United States, the Supreme Court addressed the meaning of “corruptly” in relation to section 1512(b).[15] Appellants argued that the jury was improperly instructed that it “need not find any consciousness of wrongdoing” to find that the defendants “corruptly persuade[d] another person” in connection with an “official proceeding.”[16] The Court agreed, reasoning that because the section explicitly includes the mens rea of “knowingly” before listing acts which included “corruptly persuades,” a violation of section 1512(b) requires a consciousness of wrongdoing rather than simply committing a wrongful act.[17] With regard to section 1512(c), however, the word “knowingly” is noticeably absent from the statute.[18]
Prosecutors also argue that, while it is unprecedented to charge the Capitol rioters’ conduct under section 1512(c)(2), “January 6th was unprecedented in scope and violence.”[19] Thus, it is reasonable to charge the appropriate defendants under this statute because the “wrongfulness” of the conduct—storming the Senate chambers and congressional offices—is what distinguishes that limited subset of defendants from the average protestor engaged in civil disobedience.[20] The apparent lack of a “knowledge” requirement should assuage Judge Moss’s fears that convictions may be overturned.[21] Without such requirement, defendants cannot argue they did not “know” what they were doing was “wrongful” and were merely advocating for their political beliefs using civil disobedience.[22] The prosecution even argued that “charging into [the] Capitol where the only business taking place was confirming the presidential election, forcing lawmakers to flee, . . . and shouting ‘Where is Mike Pence? We’re going to hang Mike Pence,’ all qualify as historically unique acts of wrongful obstruction . . . .”[23] Thus, the creativity in applying section 1512(c)(2) may well be warranted to achieve the deterrent effect desired by federal judges and prosecutors alike, while simultaneously capturing the severity of the attack and avoiding the pitfalls that accompany “politically-charged” crimes like “seditious conspiracy.”[24]
IV. The Balancing of Interests
A probing question remains: what is an appropriate sentence for such an obscure application of section 1512(c)(2)? Sentences should be severe enough to deter similar conduct, reflect the gravity of the attack, and reassure the public that justice remains intact in America. However, they should be equally merciful to nonviolent first-time offenders who were swept into the mob mentality and—through a lack of media literacy and other social factors—consequently bought into misinformation that the election was stolen. With threadbare caselaw to inform the sentence and little guidance from the federal sentencing guidelines, federal judges may need to be as creative in sentencing the defendants as prosecutors are in charging them.[25]
So, how can judges and prosecutors best balance the competing interests at play? The answer may lie in the Sentencing Reform Act of 1984, where only defendants sentenced to prison for more than a year may see early release for “satisfactory behavior.”[26] Ultimately, felony convictions are warranted for their deterrent effect. Judges must strike a delicate sentencing balance. Too light, and defendants could feel vindicated while the public’s faith in the justice system is further eroded. Too harsh, and the sentencing judge faces accusations of bias and risks reinforcing the defendants’ disdain and distrust for American institutions. Assuming that the Justice Department continues to seek approximately eighteen months on the obstruction charge, federal judges may craft sentences starting from a similar baseline.[27] If that occurs, federal judges at the D.C. District Court should consider the sentencing adage of “a year and a day.”[28] On its face, this expression evinces a punitive connotation, but its application instead affords mercy to the would-be convict, as only sentences greater than a year allow felons to reduce their sentences through good behavior.[29] Such a sentence addresses the competing concerns in three ways: (1) it signals to defendants that their actions were incredibly serious and will never be tolerated; (2) it shows the average American that the government is treating the attack with the gravity it deserves while simultaneously keeping the sentence within statutory and constitutional bounds; and (3) it provides mercy to the nonviolent defendant by allowing them an earlier release from prison. Through this approach, the individual defendant’s actions are the catalyst that land him or her in federal prison, and it is that same individual defendant’s actions that directly reduce the amount of time he or she spends in prison.
V. The Closing Remarks
As horrifying as January 6th was for America, it is important to consider the tragedy of the thousands of Americans drawn into believing the falsehoods generated by the perpetrators and their allies. These Amercians should receive mercy and understanding while America figures out how to release the vice grip of misinformation that has hijacked our neighbors—for we should “never send to know for whom the bell tolls; it tolls for thee.”[30]
*Bradley Rosen is a second-year day student at the University of Baltimore School of Law, where he is a Staff Editor for Law Review, a member of the Royal Graham Shannonhouse III Honor Society, and a law scholar for Professor Hubbard’s Civil Procedure I class. Bradley interned for Chief Judge Beryl Howell at the United States District Court for the District of Columbia over the summer of 2021. Before law school, Bradley managed background actors on set for various films and television productions.
[1] In re Capitol Breach Grand Jury Investigations Within the Dist. of Columbia, No. 21-20, 2021 U.S. Dist. LEXIS 132482, at *1 (D.D.C. July 16, 2021).
[2] See id. at *7–8.
[3] Id. at *2.
[4] Id. at *8.
[5] See U.S. Att’y’s Off., D.C., Capitol Breach Cases, U.S. Dep’t of Just., https://www.justice.gov/usao-dc/capitol-breach-cases (last updated Nov. 15, 2021).
[6] See id.
[7] See Hannah Rabinowitz, Chief DC Federal Judge Questions Misdemeanor Deals for US Capitol Rioters, CNN (July 29, 2021, 4:16 PM) https://www.cnn.com/2021/07/29/politics/chief-dc-federal-judge-questions-misdemeanor-deals-for-us-capitol-rioters/index.html.
[8] Tierney Sneed, Why Some US Capitol Rioters Are Getting No Jail Time, CNN (Aug. 25, 2021, 9:17 AM) https://www.cnn.com/2021/08/25/politics/capitol-riot-cases-charges-explainer/index.html.
[9] 18 U.S.C. § 1512(c)(2).
[10] Id.
[11] Ryan Lucas, Capitol Rioter Who Walked On Senate Floor On Jan. 6 Sentenced to 8 Months in Prison, NPR (July 19, 2021, 5:17 PM) https://www.npr.org/2021/07/19/1017916061/capitol-rioter-who-walked-on-senate-floor-on-jan-6-sentenced-to-8-months-in-pris; see also Marshall Cohen, First US Capitol Rioter Convicted of a Felony Gets 8 Months in Prison, CNN (July 20, 2021, 5:45 PM) https://www.cnn.com/2021/07/19/politics/capitol-riot-felony-paul-hodgkins/index.html.
[12] See Spencer S. Hsu, Lead Felony Charge Against Jan. 6 Defendants Could be Unconstitutionally Vague, Wash. Post (Aug. 6, 2021, 2:17 PM) https://www.washingtonpost.com/local/legal-issues/capitol-riot-charge-vague/2021/08/06/018b4cf8-f483-11eb-9068-bf463c8c74de_story.html.
[13] See id. (questioning “what the ‘limiting principle’ is for obstructing a congressional proceeding”).
[14] Id.
[15] Arthur Andersen LLP v. United States, 544 U.S. 696, 698–702 (2005).
[16] Id.
[17] See id. at 703–06.
[18] Compare 18 U.S.C. § 1512(b) (“Whoever knowingly uses intimidation, threatens, or corruptly persuades . . . .”), with 18 U.S.C. § 1512(c) (“Whoever corruptly . . . otherwise obstructs, influences, or impedes . . . .”).
[19] Hsu, supra note 12.
[20] See id.
[21] See id.
[22] See id.
[23] Id.
[24] See Rabinowitz, supra note 7; see Hsu, supra note 12.
[25] But see Verdict § 4, United States v. Hodkgins, 2021 WL 3051881 (D.D.C. June 2, 2021) (No. 21-cr-188) (In a plea offer, the Office of the U.S. Attorney for D.C. applied the federal sentencing guidelines to find an “Estimated Offense Level” of fourteen.).
[26] 18 U.S.C. § 3624(b).
[27] See Zoe Tillman, Most Capitol Rioters Probably Aren’t Looking At Maximum Prison Sentences, BuzzFeed News (June 8, 2021, 1:22 PM), https://www.buzzfeednews.com/article/zoetillman/capitol-insurrection-jail-time-jan-6-cases.
[28] See Richard Bistrong, Why do Judges Sentence Defendants to ‘a Year and a Day’ in Prison?, The FCPA Blog (July 19, 2016, 12:28 PM) https://fcpablog.com/2016/07/19/richard-bistrong-why-do-judges-sentence-defendants-to-a-year/.
[29] See id.; see also 18 U.S.C. § 3624(b).
[30] John Donne, Meditation XVII, in Devotions Upon Emergent Occasions 96, 98 (John Sparrow ed., Cambridge Univ. Press 1923), https://archive.org/details/devotionsuponeme00donnuoft/page/98/mode/2up?ref=ol&view=theater.
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