WASHINGTON (CN) — As a retired Air Force lieutenant colonel seeks to overturn a conviction stemming from his participation in the Jan. 6, 2021 Capitol attack, a D.C. Circuit panel set its sights on the meaning of the word "corruptly" in felony obstruction charges that have become a staple of the government’s prosecution of Jan. 6 rioters.
Larry Brock brought the challenge after he was sentenced in March to 24 months in prison.
Images from Jan. 6 show Brock on the Senate floor, wearing a combat helmet and tactical vest with plastic zip-tie handcuffs. In the days leading up, he made threatening statements on social media and posted an eight-point “plan of action” that included seizing and torturing lawmakers from both parties and eliminating national media figures. Following a bench trial, U.S. District Judge John Bates, a George W. Bush appointee, convicted Brock of felony obstruction of an official proceeding and four misdemeanor charges.
The felony charge — also levied against former President Donald Trump as part of his federal election subversion case — makes it a crime to “corruptly” obstruct, impede or interfere with any official government proceeding.
On Wednesday, the three-judge federal appellate panel mulled whether the Justice Department correctly interpreted that key term, and sought to come up with a more concrete definition.
Charles Burnham, Brock’s attorney of Burnham and Gorokhov PLLC, argued the standard to prove someone had acted “corruptly” was their “consciousness of wrongdoing,” meaning they were aware their actions were illegal and nonetheless continued.
He went further, distinguishing wrongdoing in a “moral sense," from that in "a legal sense.”
Burnham echoed arguments in other Jan. 6 defendants’ appeals, suggesting his client believed in good faith what he was doing was right — he wanted to ensure the 2020 election certification was not tainted by fraudulent votes — even if he understood that his actions broke the law.
U.S. Circuit Judge Cornelia Pillard, a Barack Obama appointee, jumped on that point, asking whether that same analysis could be applied to Civil Rights-era protesters sitting at a lunch counter. While they violated local law, the protesters held the belief their actions were Constitutionally protected — yet the Constitution would not play into their prosecution.
In fact, Pillard went on, the very purpose of civil disobedience, especially in a civil rights context, is to call attention to how some higher law conflicts with a local law, even at the cost of a demonstrator's own freedom. That higher law however applies neutrally; it doesn’t “bend and accommodate” to one's personal morals, as it seemed Burnham argued it should for his client.
The Justice Department also took heat from the panel of judges, as attorney Eric Hansford defended the use of the obstruction charge and tried to clarify the meaning of “corruptly.”
In Hansford’s view, there are two prongs to prove someone acted corruptly: first that they used corrupt means or had a corrupt purpose, and second that they were conscious of their wrongdoing.
But when the panel pushed for more concrete definitions of "corrupt purpose" and "wrongdoing," Hansford came up short.
U.S. Circuit Judge Judith Rogers, a Bill Clinton appointee, said considering the facts of Brock’s case, no reasonable person could find that any of his actions were lawful, and said a better definition was necessary to “end this fuzziness.”
Added to Brock's obstruction conviction, which carries a maximum penalty of 20 years in prison, was a sentencing enhancement for “substantial interference with the administration of justice” that raised the low end of his sentencing guideline range from 15 to 25 months.
On the question of whether Brock’s actions warranted the enhancement, the panel said most other uses of the enhancement have applied to someone interfering with a judicial proceeding, and it was unclear whether the certification of the election could count.
Obama appointee U.S. Circuit Judge Patricia Millet filled the third seat on the panel, which did not seem to have settled on an answer to either question by the end of Wednesday's arguments.
In the 32 months since the Jan. 6 attack on the U.S. Capitol, an estimated 317 people have been charged with obstruction of an official proceeding, 41 of whom have pleaded guilty to the charge.
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