Capitol Riot Defendant May Have Jumped the Gun With Supreme Court Case

The Department of Justice is urging the U.S. Supreme Court not to take up a Capitol riot case in response to a petition requesting the court look into the appeals of a specific charge.

This week, the DOJ filed a brief to the Supreme Court discussing recent decisions made by a court of appeals in three Capitol riot cases where defendants were charged with "obstructing, influencing, or impeding an official proceeding."

The Justice Department recently received a legal victory in the U.S. Court of Appeals for the Washington, D.C. Circuit, when the court ruled that the charges of obstructing, influencing, or impeding an official proceeding would stand for three Capitol rioters—Joseph Fischer, Garrett Miller and Edward Lang.

In July, Lang and his attorney, Norm Pattis, filed a petition requesting that the Supreme Court listen to his appeals for the obstruction of an official proceeding charge in which he was indicted for his role in the January 6 riots.

Many other Capitol rioters were also indicted on this charge. The charge was also mentioned in the criminal referral against former President Donald Trump by the United States House Select Committee on the January 6 Attack.

"The petitioner submits that the Justice Department's overbroad application of the federal penal code to prosecute participants in the January 6, 2021 riot at the Capitol is the act of a behemoth unrecognized, unwarranted and unwelcome in American life," the petition said. "Our political life for centuries has been fractious, with violence all too frequent. Seeking to punish and silence dissent in the name of democracy is the twisted dream of a slumbering tyrant."

However, the response from the DOJ disputes the claims in the petition, saying that "the contention does not warrant further review."

"As a threshold matter, any review by this Court is unwarranted at this time because these cases are in an interlocutory posture," the brief said. "The government is prepared to proceed to trial and to prove beyond a reasonable doubt that petitioners corruptly obstructed, influenced, or impeded the joint session on January 6, or attempted to do so."

The brief goes on to state that in his petition, Lang argues that he did "no more than speak out at a protest that evolved into a dynamic conflict" but notes that his indictment alleges that Lang assaulted several police officers and engaged in physical violence with a bat during the riots.

Newsweek reached out to the U.S. Supreme Court via email for comment.

Pattis, Lang's lawyer, told Newsweek on Wednesday morning, "That's a particularly stupid comment coming from the DOJ. It sought interlocutory review in the first place."

Michael McAuliffe, a former federal prosecutor and elected state attorney, told Newsweek that "The U.S. Supreme Court is not likely to accept the case because the issue can and will be addressed in other ways. Lang has not been tried yet."

"Other cases that have been tried and the defendants convicted based on the obstruction of an official proceeding charge are surely already working their way through the appellate process," McAuliffe said. "As such, the Supreme Court doesn't need to intervene at this point to clarify a legal issue that's subject to a lower court conflict...The Supreme Court simply doesn't have the need or an institutional interest in accepting Lang's petition at this juncture in his case."

Pattis previously told Newsweek that the petition by his client could change the legal fate for "hundreds of defendants" indicted following the Capitol riot.

"The government misuse and abuse of the federal penal code in the [January 6] cases is shocking," Pattis told Newsweek in July.