In the early hours of March 12, FBI agents in southwestern Florida barricaded a neighborhood to prepare to raid the home of one resident. Christopher Worrell of Cape Coral was arrested and charged with several counts related to the January 6 Capitol melee. Even though Worrell had been cooperating with the FBI for two months, the agency nonetheless unleashed a massive, and no doubt costly, display of force to take him into custody.
Law enforcement agents, according to one neighbor who spoke with a reporter, wore “whole outfits . . . like military and it was crazy. There was like six or seven . . . big black vehicles. They busted down the front door.” The raid included “armed men with helmets and a tanker truck” and was partially executed by the FBI’s Joint Terrorism Task Force.
Worrell never entered the Capitol building on January 6; he isn’t accused of committing a violent crime. But a D.C. judge overturned a Florida judge’s ruling to release Worrell pending further review of his case. He remains in jail.
Ginning Up “Domestic Terrorism”
Worrell’s arrest is the latest in what the U.S. Department of Justice warned would be an “unprecedented” investigation leading to sedition charges filed against American citizens. Attorney General Merrick Garland pledged to make the Capitol Breach manhunt his top priority; on his first day in office, he received an update on the investigation from FBI Director Christopher Wray. Garland has compared January 6 to the 1995 Oklahoma City bombing that killed 168 people, including 15 children.
Roughly 300 people have been arrested so far, many of them transported to Washington, D.C. to await trial and dozens denied bail after federal prosecutors argued the defendants, including a high school senior from Georgia, pose a threat to the nation.
The Capitol Breach probe, the department’s official title, is a flagrant political prosecution targeting Trump supporters. Every display—from heavy-handed FBI raids to a militarized Washington, D.C.—is designed to portray the President Trump’s allies as domestic terrorists.
The differences between how the government is handling the January 6 defendants and other so-called protestors could not be more stark. For example, a Portland investigative reporter found the Justice Department has dropped more than one-third of the federal cases related to last summer’s riots in that city, with more to come. Only about a dozen people have been arrested for last week’s rioting in Portland, which included attacks on a federal courthouse.
But the violence in Portland is different, according to Merrick Garland, who said during his confirmation hearing the Capitol attack was “domestic terrorism” because the January 6 protestors attempted “to disrupt democratic processes.” The term doesn’t apply to attacks on the Portland courthouse, Garland claimed, because those only happen at night when court is out of session.
Stretching the Law
Garland’s explanation, however absurd it sounds to the majority of Americans, bolsters one of the Justice Department’s most widely-used allegations in its Capitol investigation. More than 75 protestors now face one count of “obstruction of an official proceeding.”
The temporary disruption of Congress’ attempt to certify the Electoral College results, a task completed 13 hours after the chaos began, is repeatedly cited in charging documents as evidence of wrongdoing: “It [is] a crime to corruptly obstruct, influence, or impede any official proceeding—to include a proceeding before Congress—or make an attempt to do so,” several affidavits read.
But the government’s attempt to apply this vague law to defendants in the Capitol case is a stretch, to say the least. In several instances, it represents an enhancement charge to add a felony to mostly misdemeanor offenses.
Further, there’s no indication the law pertains to a proceeding before Congress. Here’s the exact text from the statute prosecutors cite: “Whoever corruptly . . . otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.”
The provision is part of the Sarbanes-Oxley Act, signed into law in 2002 as a congressional response to the Enron and WorldCom scandals. Corporate bad actors—not regular citizens protesting the actions of their elected officials in a public government building paid for by taxpayers—are the proper targets of that law.
In his signing statement, President George W. Bush explicitly rebuked any intention to use the law against Americans. “To ensure that no infringement on the constitutional right to petition the Government for redress of grievances occurs in the enforcement of section 1512(c) . . . which among other things prohibits corruptly influencing any official proceeding, the executive branch shall construe the term ‘corruptly’ in section 1512(c)(2) as requiring proof of a criminal state of mind on the part of the defendant,” Bush said in July 2002.
No Speedy Trials
How will federal prosecutors convince a judge someone like Christopher Worrell, who never entered the building to try to stop Congress’s certification, had a “criminal state of mind” and wasn’t simply exercising his constitutional right to protest his own government?
What Worrell and others did—those who didn’t commit crimes such as assault a police officer or vandalize property—is wholly American and well within the protections of the First Amendment.
Perhaps that explains why thousands of protestors who occupied the Hart Senate Office building in October 2018 to interrupt the confirmation of Judge Brett Kavanaugh didn’t face “obstruction of an official proceeding” charges. Ditto for those who surrounded and banged on the doors of the Supreme Court. Senator Elizabeth Warren (D-Mass.) was not accused of inciting an insurrection after she fired up the crowd that later stormed the Senate building and harassed U.S. senators.
Trump-hating thugs who tore up the nation’s capital during his 2017 inauguration also did not face extra charges for “obstruction of an official proceeding.” In fact, nearly all of the charges eventually were dropped by the same U.S. attorney’s office in D.C. now overseeing the Capitol riot investigation.
The burden of proof, to the extent it matters in the hyperpartisan Beltway justice system, is high. Nonetheless, it appears the Justice Department is having trouble building its cases, including “obstruction of an official proceeding” charges.
Last week, the government asked for permission to violate the Speedy Trial Act and grant a 60 day continuance in its case against nine defendants, alleged members of the Oath Keepers, all charged with obstructing an official proceeding among other offenses. The lawyers insist they need more time to assemble all the evidence. “[T]he ends of justice served by granting a request for a continuance outweigh the best interest of the public and the defendants in a speedy trial.”
The judge agreed.
Convicting any of the Capitol defendants on charges of obstructing an official proceeding will cross a dangerous line—a line government prosecutors and federal judges clearly feel undeterred to cross. This isn’t about justice, it’s about partisan retribution and revenge. And the consequences will be disastrous.