WASHINGTON (CN) — A group of Proud Boys who laid siege to the U.S. Capitol focused on semantics Tuesday at a hearing in which they lobbied for dismissal of the most serious federal charges against them.
Following in the footsteps of a similar motion by a group of Oath Keepers in the largest and most complex Capitol riot case, the Proud Boys deny that the gathering of Congress that they obstructed qualifies as an "official proceeding."
Both chambers of the Legislature had convened on Jan. 6 to certify the results of the 2020 election showing that then-President Donald Trump had lost by an indisputable margin to his Democratic opponent, Joe Biden. The proceeding had to be pushed back, however, after an armed mob of Trump's supporters breached Capitol security, calling for mass executions of lawmakers inside the building like House Speaker Nancy Pelosi and even Trump's vice president, Mike Pence, who was officiating the count.
The government has settled for misdemeanor plea deals to resolve charges against a great many of the Jan. 6 rioters, but those who organized the bloody insurrection or engaged in violence face a maximum possible sentence of 20 years in prison.
David Smith, an attorney for the charged Proud Boys member Ethan Nordean, insisted in court Tuesday that the certification of the Electoral College vote does not qualify as an official proceeding because it was “largely ceremonial,” rather than investigative, in nature.
“Before Jan 6, after Jan 6, there has never before been an obstruction prosecution that was not an investigative inquiry,” Smith said.
The argument did not appear to hold much sway with U.S. District Judge Timothy J. Kelly, who pointed out that Congress chose not to specify a requirement for an investigative purpose in the statute.
“There's no debating fact this statute has not been applied to similar proceedings,” Kelly told Smith. “That's partly the nature of the proceeding here being an unusual proceeding.”
Kelly appeared more receptive to Justice Department attorney James Pearce, who said that the statute plainly prohibits corrupt behavior in obstruction of an official proceeding — and that Nordean and his co-defendants clearly engaged in corrupt behavior.
“Here, defendant took intentional and unlawful action to disrupt a Joint Session of Congress,” Pearce wrote in a brief opposing Nordean’s motion to dismiss. “No guess work is needed.”
Smith argued that the statute defining an official proceeding is unconstitutionally vague as it pertains to his client, who he says was merely exercising his First Amendment right to free speech. Another word in the statute that Smith insisted is unconstitutionally vague was the term “corruptly.”
Nordean is joined in the motion to dismiss by fellow Proud Boys Joseph Biggs and Charles Donohoe. Last week, Nordean and Biggs lobbied for pretrial release, arguing that it is too difficult to communicate with their attorneys from behind bars ahead of what is sure to be a lengthy and complex trial.
Kelly has yet to rule on that motion, and the defendants will stay in jail until he does.
Smith pushed Kelly to decide on the defendants’ bail motion before he set a trial date, but Kelly decided at Tuesday's hearing to set the trial for May 18 of next year — a date that Kelly said would quickly become unavailable if they didn’t snag it now.
“I’ll just operate on assumption — which is the reality for the moment — that they are detained,” Kelly said.
The government told Kelly that the trial should take two to three weeks minimum, though Biggs’ attorney estimated it would be around six weeks.
Last week in an omnibus order concerning the case against the Oath Keepers, U.S. District Judge Amita P. Mehta rejected most of their arguments to dismiss the charges or have the case transferred out of Washington. Mehta has still yet to rule on the obstruction of an official proceeding charge.
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