Cotton part of Jan. 6 riot brief filed in court
Arkansas senator, 22 other Republicans argue law interpreted beyond meaning
WASHINGTON — U.S. Sen. Tom Cotton, R-Ark., is part of a brief filed Monday to the Supreme Court regarding criminal sentences over the Jan. 6, 2021, riot at the U.S. Capitol.
Cotton, of Little Rock, and Ohio Rep. Jim Jordan led 21 other congressional Republicans on the brief as amicus curiae to a case concerning a federal finance law cited in some criminal proceedings related to the riot.
The group argues some legal interpretations expand the statute “beyond its permissible meaning.”
The Supreme Court agreed in December to hear an appeal of the case involving Joseph Fischer, a former Pennsylvania police officer charged for his actions on Jan. 6 when supporters of former President Donald Trump stormed the Capitol building. The riot occurred amid Congress’ effort to certify the 2020 presidential election results.
The argument centers on the Corporate Fraud Accountability Act of 2002, specifically its language related to actions to obstruct, influence or impede official proceedings. According to the statute, individuals guilty of such actions face fines and imprisonment of at least 20 years.
Fischer faces a seven-count indictment related to his actions Jan. 6, which includes one citation of the obstruction charge. A federal district judge determined prosecutors went too far with their obstruction charge, triggering a Justice Department challenge and an eventual D.C. appeals court decision with a 2-1 opinion siding with the prosecutors.
The looming Supreme Court’s decision could affect an Arkansan currently serving prison time for his actions during the riot. Richard “Bigo” Barnett of Gravette was found guilty last January on eight criminal counts involving his involvement in the riot, during which he entered then-House Speaker Nancy Pelosi’s office and propped his feet on a desk.
Barnett was sentenced in May to 54 months in federal prison following his conviction, which included being found guilty on the obstruction matter now before the Supreme Court. According to Federal Bureau of Prisons records, Barnett is serving his sentence at Seagoville Federal Correctional Institution in Seagoville, Texas.
Cotton, Jordan and the other lawmakers argue the appeals court’s decision will “only reward and incentivize politically motivated uses of ill-fitting criminal statutes with harsh penalties” if the Supreme Court allows the appellate court’s ruling to stand.
“It criminalizes political conduct and grants the Department of Justice nearly unfettered discretion to prosecute Americans based on the perceived morality of their political beliefs,” the group wrote.
One principle of the group’s brief centers on the context surrounding the Corporate Fraud Accountability Act’s enactment. This language is part of a larger law — the Sarbanes-Oxley Act of 2002 — passed to address the accounting offenses involving Enron Corp. and WorldCom Inc. that preceded these corporate collapses. The language, according to the lawmakers, pertains to the individuals who could face charges and did not broaden the scope of “prohibited conduct.”
“Leading up to its collapse, Enron and the accounting firm Arthur Andersen falsified company financial statements that would have revealed immense financial losses,” the group wrote. “The Corporate Fraud Accountability Act aimed to patch a loophole in how federal obstruction of justice statutes applied to the frauds revealed in the Enron scandal.”
The members of Congress say the Justice Department and the D.C. appeals court could only interpret the obstruction language “only by reading that provision in isolation, declaring it unambiguous, and then subsequently rejecting all contrary contextual evidence as irrelevant to that allegedly unambiguous text.”
“That has it backwards,” they stated. “The statutory context must be considered as part of a court’s statutory construction, not viewed as an irrelevant formality to be rejected after the fact.”
The lawmakers additionally want the Supreme Court to consider what the standing interpretation could mean for political conduct, including speech and demonstrations.
“Advocacy, lobbying, and protest are common exercises of political expression. Acting to ‘influence’ government proceedings toward some favored goal is practically a definition of political activity,” the group argued.
“The government’s interpretation would encompass not only lobbying but all kinds of public-interest advocacy.”
America First Legal Foundation and Boyden Gray PLLC are representing the lawmakers on the brief. America First Legal Foundation is a conservative legal group whose leadership comprises former members of the Trump administration, including Trump’s former senior advisor Stephen Miller.
Other lawmakers on the brief include Utah Sen. Mike Lee, Colorado Rep. Lauren Boebert, Florida Rep. Matt Gaetz, Georgia Rep. Marjorie Taylor Greene and Montana Rep. Matt Rosendale.