Appeals court judges wrestled Monday with a challenge to a key felony charge prosecutors have wielded against Jan. 6 defendants, weighing an issue that could upend hundreds of prosecutions connected to the attack on the Capitol.
Appeals court judges wrestled Monday with a challenge to a key felony charge prosecutors have wielded against hundreds of Jan. 6 defendants, weighing an issue that could upend hundreds of prosecutions connected to the attack on the Capitol.
“If we were to extend the obstruction-of-justice laws to ballot counting, the implications are vast and very volatile,” Smith argued. “The teams of lawyers that went down to Florida, that you analogized to Jan. 6 rioters today, they didn’t say a civil war should start. They didn’t use a grappling hook and a rope. … They didn’t say a Democratic congressman should be taken to the gallows. … They didn’t punch and kick officers,” Walker continued, describing some of Smith’s clients. “I think you would have to concede that this has nothing to do with the protester outside the Capitol with a sign.
“The offense you’re charging here is reprehensible conduct on many levels, but it is not corporate fraud,” observed Katsas, also a Trump appointee. “Under the government’s reading, there’s no distinction between that Class B misdemeanor and a 20-year felony,” Smith said. “It’s turbocharging the sentencing guidelines for that offense.”
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