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Proud Boys march in Washington, D.C.

Photo by Elvert Barnes (Creative Commons Attribution-Share Alike 2.0)

A number of the defendants in the January 6 Capitol insurrection prosecutions have been hedging their bets on having the charges against them dismissed summarily on constitutional grounds, claiming variously that their actions that day were expressions of their First Amendment free-speech rights, or that the “obstruction of Congress” charges brought against them did not fit the parameters of the original law, or that they were being politically persecuted as conservatives because rioters in Portland, Oregon, the previous summer were not similarly charged.

Rulings handed down by federal judges in key cases this week have blown these hopes to smithereens. One ruling, issued Tuesday by District Judge Timothy Kelly, knocked down the attempts by Proud Boys leader Ethan Nordean to toss out the obstruction charges as well as his claim that the attack on the Capitol was an expression of constitutionally protected speech; another judge overseeing a different case ruled similarly, meaning five judges have now decided that prosecutors can proceed with these charges. Two other judges—both appointed to the bench by Donald Trump, no less—knocked down two defendants’ claims of selective prosecution.

Kelly’s ruling is particularly important because, as Marcy Wheeler explains, it will be determinative for a much larger number of cases: “All defendants charged with obstruction have been waiting for these opinions,” she writes. “But as it happens, almost two dozen people currently or potentially charged with obstruction will be covered by this opinion.”

It also was a kind of double whammy for the defendants, ruling out not just the attempts to appeal the use of Section 1512—a law passed in 2002, primarily used for prosecuting witness tampering—against the insurrectionists, but also for their attempts to claim that their attack on the Capitol was a form of First Amendment-protected speech.

“Defendants are not, as they argue, charged with anything like burning flags, wearing black armbands, or participating in mere sit-ins or protests,” Kelly, also a Trump appointee, wrote in the 43-page opinion.

“Quite obviously, there were many avenues for Defendants to express their opinions about the 2020 presidential election, or their views about how Congress should perform its constitutional duties on Jan. 6, without resorting to the conduct with which they have been charged,” he added.

It also clears the way for the court to proceed with the trial, scheduled to begin in February, of Nordean and three other Proud Boys—Joseph Biggs, Charles Donohoe, and Zachary Rehl. However, its effect, as Wheeler observes, is likely to extend well beyond just those cases, since a number of other defendants will probably become more likely to strike cooperation deals with prosecutors as a result of those avenues of defense being shut down. She identifies six other Proud Boys-related cases from Jan. 6 that will come under Kelly’s ruling.

“[If] the attorneys are seeing the same signs of an imminent superseding Proud Boy indictment, if they don’t think there’ll be any fresh uncertainty from another judge, they may rush for the exits before that happens,” notes Wheeler.

District Judge Randolph Moss handed down a similar ruling Tuesday in the cases of Patrick Montgomery of Colorado and Brady Knowlton of Utah, who are charged with various crimes involving their entry into the Capitol. (Montgomery was later placed on house arrest when he ignored court-ordered conditions on his pretrial release prohibiting possessing weapons by killing a mountain lion on a hunting trip.) Moss found the defense arguments that the men were engaging in protected free speech less than persuasive:

In truth, given the requirements that the defendant know and wrongfully intend that her conduct will obstruct, influence, or impede an official proceeding, it is hard to grasp when, if at all, the statute might apply to protected speech. The Court, certainly, cannot conclude that any such hypothetical application is “substantial,” and Defendants, for their part, fail to identify a single such example.

Other defendants have tried to claim that the Justice Department under President Biden is singling conservatives out for prosecution because they haven’t applied the same standards to leftist activists who participated in anti-police-brutality protests in Portland in the summer of 2020 that became riots. The courts threw out those arguments, first in a ruling last week in the case of Garrett Miller, the Dallas man arrested while wearing an “I Was There” T-shirt, followed by a similar opinion issued this week in the case of David Lee Judd, a Dallas man accused of throwing a firecracker at police officers, among other assault charges.

“The Portland rioters’ conduct, while obviously serious, did not target a proceeding prescribed by the Constitution and established to ensure a peaceful transition of power,” wrote District Judge John Nichols in Miller’s case. “Nor did the Portland rioters, unlike those who assailed America’s Capitol in 2021, make it past the buildings’ outer defenses.”

The judge in Judd’s case, Trevor McFadden, however, was remarkably more sympathetic to the claim, observing in his opinion that the government “incredibly” dismissed charges against three Portland rioting defendants, and that it was “suspicious” that “he still faces greater charges than the Portland defendants.”

“Rarely has the Government shown so little interest in vigorously prosecuting those who attack federal officers,” he wrote. “Especially during moments of politically charged unrest, the Justice Department must strive for even-handed justice. Judd raises troubling questions about the Department’s adherence to this imperative in Portland.”

Nonetheless, he concluded that Judd’s comparison falls apart as a matter of law. “Judd must show that the Portland defendants are similarly situated to him,” he wrote. “He cannot do so. Although both Portland and January 6 rioters attacked federal buildings, the Portland defendants primarily attacked at night, meaning that they raged against a largely vacant courthouse.

“In contrast, the January 6 rioters attacked the Capitol in broad daylight. And many entered it. Thousands of congressional staffers walked the Capitol’s corridors that day. So did hundreds of legislators and the Vice President, all of whom appeared for a constitutionally mandated proceeding.”

Article reposted with permission from Daily Kos

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