Justice, Law, and the Real Lessons of J6

It’s been three years since the protest at the Capitol on January 6th, and now is the first time that some of the prosecutions are on shaky ground. Prosecutors have enjoyed easy and minimally contested cases, with most defendants relying on lousy public defenders. Those who have been sentenced are not rich masterminds, but ordinary Americans from the places that elitists like to call “flyover country.” They have been victims of a political fight, not participants in an impartial justice system.

One of the key methods of over-charging the protesters has been to charge them with obstruction of an official proceeding, under U.S.C. 1512. It’s a law that was never intended for this application, but was instead supposed to be utilized against white collar criminals, such as those who engage in the destruction of documents for the sake of corporate malfeasance. One may ignore the intended purpose of the law, and claim that a strict reading means that it can be used for this purpose, but even that isn’t clear.

Even a direct reading of the text of the law uses the term “corruptly”, as in, “Whoever corruptly obstructs, influences, or impedes any official proceeding…” Lawyers have argued that the protesters believed that the 2020 election was stolen and thus their protest did not have corrupt intentions, but just ones. It would be hard to argue that the protesters were corrupt, and that’s because the law was meant for a very different set of circumstances.

This brings us to why we’re arguing over nuances anyway: most of those protesters didn’t do anything criminal. Some did, but most were just engaged in a protest. Even those who entered the Capitol building were generally calm and stayed between the red rope dividers that are placed there for visitors. An actual insurrection involves weapons and candidly, bodies. These were merely disgruntled citizens, some of whom became rowdy.

It is only because of these facts that hitherto unfamiliar laws had to be unearthed at all. Those who assaulted law enforcement could be charged with such. Those who damaged property could have been charged accordingly. But that wasn’t enough. They needed to charge those who merely walked through the building. That’s why they had to forage through the mountains of the U.S. criminal code to find and misapply an obscure law, knowing that federal prosecutors would face sympathetic courts and juries in Washington DC, easily one of the most solidly blue voting regions in the nation.

The Supreme Court has now agreed to look at the application of this law as it applies (or doesn’t) to January 6th cases. The expectation that they will rule against it is already being felt. Some judges have begun postponing trials until the Supreme Court rules on the obstruction law. This will not, however, affect the hundreds who pled guilty in order to reduce the risk of being away from their families for years. It could bulldoze the obstruction case against President Trump, grant an early release to some who went to trial, and provide relief to a myriad of ongoing January 6th cases.

The prosecutorial over-reaction is a reflection of the panic of a much bigger machine. The collective Left, which includes the media, intelligence agencies, academia, and entertainment industries, were horrified to see “right-wingers” organize. They were not accustomed to watching protests by conservatives, and certainly not any instance of violence. That was their thing. They were the ones burning cities and setting police cars ablaze. They were accustomed to terrorizing neighborhoods and targeting police stations. Any indication of resistance by their political enemies, beyond mere words, was new. As such, they were afraid, especially since their perspective has been warped so as to see all conservatives as the embodiment of Hitler. To them, therefore, right-wing protests look like Hitlerian rallies. Yet, they are unable to see parallels between left-wing riots and Mao’s Cultural Revolution.

The release of those who were aggressively charged for peacefully walking through a building will be a first step toward correcting an obvious miscarriage of justice. It will correct what was never about respect for the rule of law, but about political warfare at the expense of people’s lives.