The case, Miller v. United States, involves the breadth of an unlikely federal law that has been used to charge about 300 Jan. 6 Capitol riot defendants. In the 2002 Corporate and Criminal Fraud Accountability Act, part of Sarbanes-Oxley, Congress provided that anyone who corruptly “alters, destroys, mutilates, or conceals a record, document, or other object” with intent to impair its “integrity or availability for use in an official proceeding” — or “otherwise obstructs” or “influences” a proceeding — can be imprisoned for up to 20 years. The background for the law was the Enron accounting scandal in 2001. It has been used since then to punish tampering with evidence in investigations.
But the Justice Department, apparently intent on imposing the maximum punishment on those who participated in the Jan. 6, 2021, riot, developed a new use of the law. Ignoring the bulk of the language about destroying evidence, it claimed that the law’s “otherwise” clause can cover, for the first time, participation in a riot — even though, as the Miller petition notes, “every traditional criminal act on January 6 is covered by a more specific criminal statute, such as those proscribing trespass and assault.”
Most, but not all, lower-court judges have blessed this prosecutorial innovation. One dissenting judge argued that the Justice Department’s interpretation would make the law “implausibly broad,” potentially sweeping in “large swaths of advocacy, lobbying, and protest.”
Perhaps prosecutors thought this legal maneuver could be one-and-done, aimed at Jan. 6 participants, and no one else, because of the singular gravity of that event. That’s not how criminal law works, especially when partisan politics is involved. Now that the statute’s traditional limits have been removed, it’s no longer clear what sort of mischief and disruption in and around Capitol Hill is covered by the felony punishable by up to 20 years.
That brings us to Bowman. On Saturday,as Democrats tried to buy time to assess a last-minute government funding bill favored by GOP leadership the congressman pulled a fire alarm in the Cannon House Office Building.
Accusing Bowman of deliberately setting off the alarm to obstruct House proceedings, Republicans have introduced resolutions to censure or expel him. Capitol Police are investigating, and Rep. Nicole Malliotakis (R-N.Y.), among others, has suggested he is guilty of the same obstruction offense as Jan. 6 rioters. Bowman and his defenders say he was rushing from the office building to the House floor to vote and that confusing signage led him to think the alarm would open a door.
Whether there’s fire in the Bowman scandal or merely smoke (either is possible), the fierce debate around the incident shows how the flawed Jan. 6 precedent has raised the legal stakes when congressional disruptions occur. Sen. Tom Cotton (R-Ark.) grilled Deputy Attorney General Lisa Monaco in April on why the Justice Department was not pursuing major felony charges against progressive protesters who allegedly tried to interrupt a House Judiciary Committee hearing.
A New Republic article this week argued that “Republicans are continuing their campaign to downplay the January 6 insurrection, this time by comparing the violent riot to Representative Jamaal Bowman pulling a fire alarm.” It’s true that some Republicans want to opportunistically equate the two events.
But that shouldn’t be relevant to the Supreme Court one way or another. The point for the court is that the Justice Department has unleashed a prosecutorial power that Congress never clearly authorized but that could cover semiregular disturbances on Capitol Hill — and that partisans are champing at the bit to use against one another. Far from going away after the Jan. 6 cases are disposed of, the controversy over what constitutes obstruction in a polarized and chaotic Congress is likely to grow without judicial clarification.
The party out of power tends to see the greatest threat to democracy from political repression. The party in power tends to see the greatest threat to democracy from populist mayhem. If the Supreme Court doesn’t correct prosecutors’ application of this powerful law, the United States is more likely to experience a cycle of both.
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