Why Senator Padilla Must Be Charged
Hundreds of ordinary Americans had their lives destroyed by the Biden Justice Department's policy choices in how it prosecuted January 6 defendants.
Title 18 of the United States Code, Sec. 111 provides as follows:
Hundreds of persons charged and convicted of this crime in connection with the events of January 6 at the United States Capitol. I represented more than 25 of those defendants. I spent hundreds of hours watching video evidence of not just my own clients, but dozens/hundreds of other January 6 defendants for the purpose of making comparisons. I knew the District of Columbia judges had also watched video of dozens of other January 6 defendants in other cases, and internalized a spectrum of “bad conduct.” There was no way for the Judges to forget what they had seen other defendants in the video evidence they had watched previously. So my approach always took into consideration what other defendants before a particular judge had done when trying to distinguish or analogize my client’s conduct — whichever was in my client’s interest — as reflected on the video.
The spectrum of offense conduct that the Biden Justice Department enveloped under the umbrella of the extremely broad statutory language of Sec. 111(a) is hard to describe with any precision. But the most important lesson to be learned from that language is that “assault” is only one of six verbs describing conduct that Congress criminalized with this statute.
This point was driven home to me in my first trial of a January 6 case when I was arguing for an acquittal of my client during closing argument in a bench trial. When I focused on the work “assault” the judge pointed out the broad reach of the statute to conduct not involving “assaultive behavior,” and then asking me — paraphrasing the judge:
Wouldn’t your argument be more appropriately addressed to me at sentencing — that your client’s conduct fell short of assaultive behavior and as a result the sentence imposed should reflect that? But his conduct nevertheless violated the statute with respect to the non-assaultive behavior that was also criminalized by Congress? Resisting, impeding, etc. Can’s conduct short of assaultive-behavior still violate those other provisions of the statute?
The judge convicted my client, but made a specific finding that my client had not “assaulted” any officer while still violating the statute nonetheless, and imposed a very modest sentence as compared to quite harsh sentences given to co-defendants who the judge found had actually assaulted officers in the same sequence of events.
That is just one example of conduct directed at federal law enforcement officers that is relatively benign as an objective matter, still meets the statutory definitions of a felony under Section 111(a). The penalty provision states that “physical contact” with the victim — the officer — makes the offense a felony and not a misdemeanor. The Biden DOJ made use of this penalty provision to charge hundreds of January 6 defendants with felony “assault” — the description it put in charging documents and press releases — in nearly every case where the January 6 defendant placed his hands on a Capitol Police or Metropolitan Police officer.
