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D.C. Appeals Court Upholds Part of Jan. 6 Prosecutions

The two rulings on mifepristone weren't the only big legal rulings Friday. Another one came from the D.C. Court of Appeals. It relates to over 300 criminal cases relating to the Jan. 6 coup attempt. Hundreds of rioters have been charged with obstructing an official proceeding (the counting of the electoral votes). The Court ruled that taking part in a riot that delayed the count by several hours is indeed obstruction of an official proceeding. Consequently, people who took part in the riot can be convicted on that charge. Therefore, hundreds of convictions stand and the defendants will be sentenced unless they appeal to the Supreme Court and it takes the cases. The maximum penalty is 20 years in federal prison.

Judge Florence Pan wrote for the 2-1 majority: "The broad interpretation of the statute—encompassing all forms of obstructive acts—is unambiguous and natural." The ruling is now binding in all D.C. federal courts unless it is subsequently overturned. One issue that the Court did not rule on (because no one asked it to) is whether Donald Trump's actions on Jan. 6, 2021, such as calling on people to march to the Capitol, which led to the riot, constitute an attempt to obstruct an official proceeding. We suspect that Special Counsel Jack Smith is going to read this decision very, very carefully. He will not delegate it to some student intern.

In a concurrence, Judge Justin Walker wrote that obstruction only occurs when the accused intended to obtain an unlawful benefit for himself or someone else. Nevertheless, he agreed that the law was applicable in this case because the unlawful benefit would apply to Donald Trump—awarding him the presidency even though he lost the election. Judge Greg Katsas disagreed with the other two because some of the rioters did not mutilate official documents. Both of the men were more focused on whether the rioters had "corrupt intent" than Pan was.

We hate to need to give more information about the judges, but given the first item today, it is clear that it matters a lot which judge gets which case. Florence Yu Pan is the daughter of immigrants from Taiwan. She has a J.D. from the Stanford Law School and was appointed by Joe Biden to fill the District Court vacancy created by the elevation of Ketanji Brown Jackson to the D.C. Appeals Court. When Jackson was elevated again, to the Supreme Court, Pan got Jackson's old job on the Appeals Court. She is the first Taiwanese American to serve on the D.C. Court of Appeals. Justin Walker is from a powerful Kentucky family. He was active in Republican politics from a young age. As a college student, he was an intern to Sen. Mitch McConnell (R-KY). He got his J.D. from the Harvard Law School. During the Brett Kavanaugh confirmation hearings, he gave 119 interviews and some paid speeches defending Kavanaugh. In 2019, Donald Trump appointed him to the D.C. District Court and a year later elevated him to the D.C. Appeals Court. Trump is not going to like his ruling. Greg Katsas is the son of Greek immigrants. He went to Princeton and then Harvard Law school, where he got his J.D. cum laude. He never was a district judge but Donald Trump appointed him to the D.C. Court of Appeals in 2017 anyway. He was confirmed by the Senate on a contentious 50-48 vote.

Of course, in future cases relating to the Jan. 6 rioters, the facts play a key role. How much did one have to do to obstruct an official proceeding? Would giving someone a baseball bat later used to break into the Capitol count? Would driving a rioter to the Capitol and then going home meet the test? Prosecutors will have to look at this case by case, but the general principle that trying to stop the electoral vote count is a crime is no longer in doubt. (V)

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