Former WA AG McKenna explains prosecution case against Jan. 6 Capitol rioters

Jan 6, 2022, 3:58 PM | Updated: Jan 7, 2022, 10:09 am
A pro-Trump riot breaks into the U.S. Capitol on January 6, 2021 in Washington, DC. (Photo by Win M...
A pro-Trump riot breaks into the U.S. Capitol on January 6, 2021 in Washington, DC. (Photo by Win McNamee/Getty Images)
(Photo by Win McNamee/Getty Images)

In the year since the Jan. 6 riot at the nation’s Capitol, more than 700 protesters have been arrested. Former Washington Attorney General Rob McKenna joined KIRO Radio’s Seattle’s Morning News with Dave Ross to break down the charges which could be brought against them.

“The law says that it’s a felony to obstruct an official proceeding,” McKenna said. ”Those people could be facing up to a 20-year sentence, although I think few of them would receive a sentence that long.”

McKenna pointed to the Sarbanes-Oxley Act of 2002, enacted after Enron’s accounting fraud scandal and collapse. The act makes it a felony to obstruct, influence, or impede any official proceeding.

“The judges that have looked at that language so far say … that language would seem to apply to counting the electoral votes,” he said.

The former state attorney general noted that those being prosecuted are limited to individuals actually present on the Capitol’s grounds, with special attention paid to those who committed acts of violence and are being charged with assault and battery.

The theoretical case against anyone outside the Capitol is weaker.

U.S. Attorney General Merrick Garland delivered a speech Wednesday in which he said the Department of Justice “remains committed to holding all Jan. 6 perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy.”

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“It doesn’t appear that what they did would fit within this definition … of obstructing an official proceeding,” McKenna added. “Because when you look at the entire section of the statute, it refers to corruptly obstructing or impeding an official proceeding.”

Therefore, if the prosecution were to be expanded, the case rests on meeting the legal definition of corruption, or proving that the strategy to stop the votes on election night was illegal.

“That’s going to be a harder case to make,” McKenna suggested.

“But what the prosecutors are doing with people who were are at the [Capitol] is to use this obstruction of an official proceeding language to gain leverage on some of these defendants because they’re requiring those who want to reach a plea bargain agreement to agree to plead guilty to that provision,” he said. “And that’s important, because it means they’re facing at least two to three years in prison a piece.”

A Republican himself, McKenna is adamant that the prosecution of those 700 rioters is a just, definitive condemnation of “people who attempt to commit insurrection.”

“Too many [Republicans] have been backpedaling or soft pedaling the events now, trying to brush off criticism of the events as being partisan attacks, when in fact they were hugely concerning,” McKenna concluded. “So people who put their political objectives ahead of truth and what’s important in this country shouldn’t be in politics and shouldn’t hold the office in my view.”

Listen to Seattle’s Morning News weekday mornings from 5 – 9 a.m. on KIRO Radio, 97.3 FM. Subscribe to the podcast here.

Dave Ross on KIRO Radio 97.3 FM
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Former WA AG McKenna explains prosecution case against Jan. 6 Capitol rioters