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It’s been a little more than eight months since the attack on the U.S. Capitol and there have been more than 570 arrests, as well as over 200 indictments. Now, there’s a new felony charge — “obstruction of an official proceeding” — being discussed in the Jan. 6 cases, which former state helps explain.

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“One of the charges that prosecutors have chosen to bring against a number of the rioters who broke into the Capitol is the charge of ‘obstruction of an official proceeding,’ rather than charging sedition or insurrection, at least in about half the cases so far,” McKenna said. “And of course what they’re specifically getting at is obstructing the official proceeding of certifying the Electoral College vote.”

“The judge has raised the question of whether or not ‘obstruction of an official proceeding’ is constitutionally vague,” McKenna continued. “He wants to know what the standard is. What’s the difference, for example, between what these rioters did and what someone would do if they stood up in the middle of a congressional debate from the visitor gallery and started yelling and screaming to try to disrupt it? Is that an obstruction of a proceeding?”

The lawyers for at least two of the defendants are claiming the meeting on Jan. 6 to certify the election was not an official proceeding, “which I think is kind of dubious,” McKenna noted.

“So I think what the judge is doing here is trying to bring greater legal certainty here because this is not a charge that is frequently brought,” he continued. “There’s not a lot of case law on it, and he wants to get this squared away earlier rather than later because a lot of plea deals are being cut here and he wants to be confident that these plea deals are appropriate.”

As for what happens to the ongoing cases if it’s decided this is constitutionally vague, McKenna thinks it could depend on the individual case.

“So, for example, if someone participated in the Capitol riot by coming into the building, but did not try to get into the chambers where the vote certification was taking place, that might be a different situation than someone who actually tried to break into the chambers. Or did get into the Senate chambers or House chambers,” he said.

“I think if there is greater clarity on what constitutes ‘obstruction’ that you’ll see more successful plea deals where people are pleading to these felonies,” he added. “Otherwise, a number of these defendants might say, ‘Well, I’m not going to plead to a felony. I don’t think you can get me on a felony, I’ll plead to a misdemeanor.'”

It’d probably a misdemeanor, he says, to shout and jump and try to disrupt a congressional hearing.

“The question is, what is an ‘official proceeding,’ [the] obstructing of which is so serious that it warrants a felony charge?,” he asked.

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