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Lead Capitol riot charge is constitutional, judges find

The Washington Post logo The Washington Post 12/21/2021 Rachel Weiner
In this file photo taken on January 6, 2021 supporters of US President Donald Trump clash with police and security forces as they storm the US Capitol in Washington, DC. © Roberto Schmidt/AFP/Getty Images In this file photo taken on January 6, 2021 supporters of US President Donald Trump clash with police and security forces as they storm the US Capitol in Washington, DC.

Three federal judges have agreed that the most serious charge faced by those accused of participation in the Jan. 6 riot at the U.S. Capitol is constitutional, a victory for the Justice Department and a blow to the defendants fighting those accusations.

The ruling came Monday evening from U.S. District Judge Amit B. Mehta, who is overseeing the prosecutions of more than a dozen people associated with the Oath Keepers, a self-styled militia group. Mehta joins judges Dabney L. Friedrich and Timothy J. Kelly, both of whom have moved to uphold the obstruction charges in other cases.

The same legal challenge has been raised by defendants in various Capitol riot prosecutions, from single-person indictments to sprawling conspiracy cases. One judge who has questioned the use of the obstruction charge has yet to rule on the issue.

Without that felony charge, prosecutors would be left with only minor charges against many they view as playing a major role in the riot. The Justice Department has avoided charges of sedition, a rarely used law, and not all those accused of acting as key instigators were seen assaulting police officers.

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The ruling also has broader implications. Rep. Liz Cheney (R-Wyo.) has suggested former president Donald Trump could be charged with obstruction of an official proceeding.


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Mehta had previously expressed concern that it was unclear what conduct counted as felony “obstruction of an official proceeding” as opposed to misdemeanor disruption of a congressional hearing — a difference between a potential sentence of six months and 20 years behind bars.

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But after months of consideration and legal arguments on both sides, Mehta ruled that the government had it right.

“Their alleged actions were no mere political protest,” he wrote. “They stand accused of combining, among themselves and with others, to force their way into the Capitol building, past security barricades and law enforcement, to ‘Stop, delay, and hinder the Certification of the Electoral College vote.’ ”

Defendants had argued that it was unclear whether the certification of President Biden’s victory counted as an “official proceeding.” Charging participants in the Jan. 6 riot with obstruction, they warned, could turn even peaceful protesters into potential felons.

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Mehta said the “plain text” of the obstruction law covered the group’s actions, and that “even if there were a line of ambiguity ... their alleged acts went well beyond it.” Because the law requires the obstruction to be undertaken “corruptly,” he added, it does not imperil constitutionally protected free speech.

Prosecutors say the Oath Keepers prepared for Jan. 6 with “military-style and combat trainings,” Mehta noted, and armed themselves with tactical gear and in some cases bear spray before entering the building. According to the government, they stashed guns in a hotel nearby in Virginia. Inside the Capitol, they confronted police. One grabbed an officer and yelled, “Get out of my Capitol!”

If those charges are proved at trial, the judge said, “a conviction ... would not violate the First Amendment.”

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