JUDGES QUESTION CONSTITUTIONALITY OF FELONY CHARGE AGAINST JAN. 6 DEFENDANTShttps://www.powerlineblog.com/archives/2021/09/judges-question-constitutionality-of-felony-charge-against-jan-6-defendants.phpIf Code Pink demonstrators start screaming during a congressional hearing, should they be charged with a felony and sentenced to 20 years in prison? They have not been, and as much as I dislike Code Pink, they should not be. Thirty days in the hole seems like a sufficient sentence.
But the federal statute that criminalizes “obstructing an official proceeding” of Congress makes such obstruction a felony punishable by up to 20 years in prison. And according to the Washington Post, federal prosecutors are applying that statute to the protesters — at least 235 of them — who entered the Capitol in January of this year.
A few judges have noticed the disconnect. U.S. District Judge Amit P. Mehta recently asked how federal prosecutors distinguish felony conduct qualifying as “obstructing an official proceeding” of Congress from misdemeanor offenses the government has brought against those who interrupt congressional hearings. Dissatisfied with the answer, Judge Mehta complained:
Essentially, what you said is, ‘Trust us.’ 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.’
Of course, the problem is particularly acute in cases like Code Pink and Jan. 6, where the government is likely to pick and choose based on its sympathy, or lack thereof, for the protesters.
Mehta is the second judge to raise this concern in these cases. Judge Randolph Moss voiced it last month.
As writer Mirengoff pointed out later in his article, Pro-Abortion protesters are likely in the coming weeks to present another vagueness and selective enforcement challenge to the 1/6 trespassers'/rioters' trials.
