NRPLUS MEMBER ARTICLE {W} hy isn’t Representative Jamaal Bowman being charged with felony obstruction of Congress?

On September 30, as congressional Democrats were scrambling to delay a budget vote, the progressive New York Democrat pulled a fire alarm in the Cannon House Office Building. Though he has claimed it was a mistake, there is convincing evidence that he did this willfully — he well knew it was a fire alarm, he ran to abandon the building, and he never tried to inform Capitol Police of the incident as one would naturally do if it had been an accident. (For more, see Jeff Blehar’s excellent column).

With great fanfare, it was announced on Wednesday that Bowman was being held “accountable” because he has been charged with the misdemeanor offense of pulling a fire alarm. This sort of “accountability” will come as a surprise to hundreds of people — including former president Donald Trump — whom the Biden Justice Department (and, in Trump’s case, Biden-DOJ-appointed special counsel Jack Smith) have aggressively charged with obstructing Congress in connection with the Capitol riot — the uprising that interrupted the joint January 6, 2020, session held to ratify now-president Biden’s victory in the presidential election.

Obviously, some of the rioters were violent. But many weren’t — in the main, they were loitering in a place they weren’t lawfully permitted to be, many of them doing so only after members of Congress and Vice President Pence had been evacuated. Trump, of course, was not among the rioters, much as he is rightly blamed for stoking them. Yet Smith has charged him with felony obstruction based on his effort to delay the joint session by relying on a bogus legal theory (namely, that the vice president could invalidate electoral votes, or at least remand them to the states) that was supported by factual claims of election-fraud that Trump allegedly knew were false.

To say the Biden Justice Department has scorched the earth to prosecute January 6 offenders is hardly hyperbole. Well over a thousand people have been prosecuted. The majority of these offenders were non-violent protesters who would never have been charged by the Justice Department under normal circumstances. For political reasons, Democrats were determined to make an example of them, running up the prosecution numbers in order to promote a “domestic terrorism” narrative. As we’ve detailed, defendants from all over the country were hunted down by the FBI and dragged back to Washington, often to face mere misdemeanor charges — including one defendant, from New Mexico, whom Justice Department prosecutors knew had been waved into the Capitol by police (he was acquitted).

Bowman’s conduct was willful and consequential. By the Biden Justice Department’s January 6 standards, he should be looking at a felony prosecution. But he’s a Democrat — a woke wunderkind formerly affiliated with the Democratic Socialists of America. Naturally, then, he is getting the Hunter Biden treatment rather the Donald Trump treatment.

Why is he being prosecuted at all? Why, to protect him, of course.

Bowman’s crime is subject to the five-year federal statute of limitations. If Republicans were to get out of their own way and win the 2024 presidential election, a new Justice Department intent on restoring equal justice under the law — or, intent on the “retribution” that Trump has promised — could decide that Bowman should be treated like a January 6 offender and charge him with felony obstruction of Congress.

Bowman’s sweetheart misdemeanor plea deal, however, will give him double-jeopardy protection against future criminal prosecution. It is cost-free for him — other than the nominal $1,000 fine. He will not only never spend a moment in jail (the maximum sentence for the misdemeanor is six months, but he is being spared any of that); it has been agreed that if he pays the fine and apologizes to the Capitol Police, the charges against him will be withdrawn in three months.

It counts, nevertheless, as a prosecution. And even though the case is being handled locally — i.e., by the District of Columbia attorney general rather than the Biden Justice Department’s U.S. attorney — Bowman will be able to argue that it protects him from any future prosecution by the Justice Department.

The Justice Department cannot be blocked from indicting a defendant who has already been prosecuted for the same offense by the state authorities. The states and the federal government are separate sovereigns in our federalist system; ergo, under the “dual sovereignty” exception to double jeopardy, a prosecution by the state does not bar a later prosecution by the feds. The District of Columbia, however, is not a state; it is under the jurisdiction of the federal government. Even though it has a municipal division that handles local crimes, it is still under federal authority.

A future Republican Justice Department could attempt to argue that Bowman may still be prosecuted for an obstruction felony because it is not the same offense as the misdemeanor of pulling a fire alarm. (Double jeopardy only prohibits the government from twice prosecuting the exact same offense.) It would be tough sledding, though; Bowman would claim that, under the circumstances, pulling the firearm was a core part of any obstruction allegation (seeking to analogize it to a “lesser included offense” the prior prosecution of which has been held, under double-jeopardy principles, to bar prosecution for the “greater offense”).

A federal prosecution by the Biden Justice Department was never going to happen. Quite apart from the DOJ’s politicization under Biden AG Merrick Garland, it would have been embarrassing. In his defense, Bowman would have had to argue that the relevant federal-obstruction statute does not apply to conduct such as his because, though it was corrupt and did impede congressional proceedings, he did not tamper with evidence or witnesses. As the Washington Post’s Jason Willick observes (and as I’ve discussed here and here), that is exactly the argument that January 6 defendants have been making — to the strenuous objection of the Biden Justice Department and the befuddlement of the courts (the Supreme Court will probably have to resolve the issue, perhaps soon since it is central to Smith’s prosecution of Trump).

The Biden administration is already dealing with the inconvenience of Hunter Biden’s contention that the federal gun laws are unconstitutional — i.e., the laws his dad has championed, and for the violation of which Hunter has been indicted. It didn’t need a Democratic firebrand casting doubt on the legitimacy of the Capitol riot prosecutions.

That is two-tiered justice. The Democrats always take care of their own.