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Justice Department asks appeals court to overturn judge who dismissed Capitol riot charges

Federal prosecutors say U.S. District Judge Carl Nichols got it wrong when he dismissed felony obstruction charges against three defendants.

WASHINGTON — The Justice Department will ask the D.C. Circuit Court of Appeals to overturn a judge’s decision to throw out felony charges against three Jan. 6 defendants, according to a notice filed Wednesday.

The U.S. Attorney’s Office for the District of Columbia filed notices of appeal Wednesday in its cases against Garrett Miller, Joseph Fischer and Edward Jacob Lang. Since March, U.S. District Judge Carl Nichols has dismissed obstruction of an official proceeding charges against all three – most recently Lang earlier this month.

With the exception of members of the Proud Boys and Oath Keepers now facing charges of seditious conspiracy, the obstruction charge is the most serious count filed against more than 230 defendants in connection with the Capitol riot. Jacob Chansley, the so-called “QAnon Shaman,” pleaded guilty to the same charge and was sentenced in November to 41 months in prison.

Nichols is, to date, the only judge on the D.C. District Court to dismiss the obstruction count against a Jan. 6 defendant. He first did so in March, when he granted Miller’s motion to dismiss. In his order, Nichols relied on a narrow reading of the statute — 18 USC § 1512(c)(2) — that would require a defendant to be accused of taking “some action with respect to a document, record or other object” in order to corruptly obstruct the joint session of Congress on Jan. 6.

Nichols’ colleagues on the D.C. District Court have rejected his reading of the statute in their own orders on similar motions. U.S. District Judges Dabney Friedrich and Trevor McFadden, both appointed, like Nichols, by former President Donald Trump, called his reading “unnatural” and “strained,” respectively. U.S. District Judge John Bates, a George W. Bush appointee, wrote in an opinion last month that he’d concluded the statute is a “broad prohibition on all forms of obstruction” – a reading his colleagues, Nichols excepted, have broadly adopted.

The DOJ asked Nichols to reconsider his decision and, last month, he said in a court hearing he was “very seriously contemplating” doing so. But Nichols ultimately denied the government’s motion on May 27 without offering furthering elaboration.

Wednesday’s appeal was an expected move from prosecutors, who’ve said in public hearings they want to avoid having different evidentiary standards for the obstruction charge in different courtrooms. As of Wednesday afternoon, no appeal was yet listed on the D.C. Circuit Court’s docket.

All three defendants – Miller, Fischer and Lang – are under indictment on other felony charges, including civil disorder and assaulting, resisting or impeding police. Miller and Lang were denied bond and await trial in detention. Fischer was granted bond last March and released to the Middle District of Pennsylvania.

Another Jan. 6 defendant assigned to Nichols, Gina Bisignano, has asked to withdraw her guilty plea to the obstruction charge, citing Nichols' ruling. A hearing on that motion scheduled for Wednesday was reset to July 12.

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