On Monday, the Interim U.S. Attorney for the District of Columbia, Ed Martin, announced that his office would undertake a review of the decision-making that led to the charging of hundreds of January 6 protesters with “obstructing Congress” in violation of 18 U.S.C. Sec. 1512(c). That was a statute passed by Congress in 2005 to address an alleged hole revealed in an obstruction of justice statute criminalizing the destruction of records, documents, materials, etc., to obstruct an investigation. The “hole” was the fact that the language of the existing statute made it a crime to direct third parties to undertake such obstructive acts, but it did not – by its plain language – make it a criminal act to take such action yourself.
This was the finding of the Supreme Court in Arthur Andersen v. United States, an infamous case related to the Enron…
