Two Jan. 6 defendants are asking the Supreme Court to correct what they argue is “prosecutorial overcharging” before their cases go to trial.
Edward Lang and Garrett Miller, who allegedly both entered the Capitol on Jan. 6, are asking the Supreme Court to dismiss an obstruction charge against them before their trials, alleging prosecutors broadened an unrelated statute to “over-penalize” those who participated in the riots, according to their petitions. If the Supreme Court takes the case, it could have broad implications for hundreds of other Jan. 6 defendants indicted under the statute.
The law under consideration is Section 1512(c)(2), which carries a maximum 20 year prison sentence for anyone who “obstructs, influences, or impedes any official proceeding.” Though the statute was passed to fight evidence tampering, government prosecutors have reasoned that Lang and Miller, along with many other Jan. 6 defendants, obstructed an official proceeding by attempting to disrupt Congress from certifying the election results.
In an amicus brief filed Aug. 30, three other defendants with pending cases before the U.S. District Court for the District of Columbia asked the Supreme Court to hear the case to prevent “a cascade of errors and misconceptions in the application of the law and undeserved harm to the defendants and the public perception of the courts.”
Over 200 defendants have been charged under the statue, according to the brief. (RELATED: Trump Asks Judge To Recuse Herself From 2020 Election Case)
“A short walk from the building in which this Court sits, ‘a revolution is underway, with ambitious federal prosecutors reworking the penal code to make it do work never intended to be done, work that threatens to chill, and does chill, ordinary Americans in their First Amendment rights to assemble, to petition for the redress of grievances and to speak out on matters of public concern,” Lang’s petition begins, calling the application of Section 1512(c)(2) “overcriminalization of otherwise criminal conduct.”
Miller was sentenced to 38 months in prison in February for multiple charges, including assaulting a police officer and entering a restricted building, according to the Department of Justice. But the government still intends to bring him to trial on the obstruction charge, according to his petition.
Lang, awaiting his trial, is incarcerated as a pre-trial detainee, according to his petition. Lang’s petition was filed July 7 and Miller’s on July 28.
Lawyers for Lang and Miller did not immediately respond to requests for comment.
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