Submitted by Lou Virelli
On Monday morning, a group of scholars from diverse areas of interest got together to discuss various legal issues surrounding the January 6th insurrection at the Capitol. The discussion was structured around four broad categories: congressional power to investigate and executive privilege, legal and judicial ethics, First Amendment defenses to criminal charges, and obstruction of justice. Jonathan Shaub and co-moderator Andrew Wright shared their extensive expertise regarding the intricacies of congressional investigations, including what goes on behind the scenes in Congress and the executive branch during such investigations, and claims of executive privilege in response to inter-branch requests for information. They outlined the relevant case law and other recent precedents (like Steve Bannon’s conviction for contempt of Congress) and explained how they apply to the events of January 6th. They concluded by highlighting some still unresolved issues that may end up in the courts.
The conversation then shifted to ethical issues. Kellyn McGee discussed the ethical issues facing lawyers who may be asked to represent participants in the insurrection, including how the convictions of attorneys who participated in the raid on the Capitol may affect their ability to continue practicing and the legal mechanisms for bringing about disbarment in those instances. Lou Virelli introduced some of the challenges facing the judiciary as it confronts cases arising from January 6th and the challenge to the 2020 election. He addressed ethical questions specific to the Supreme Court and how those questions may impact the public’s confidence in the Court’s ability to resolve such sensitive and politically charged cases.
Michael Vitiello described the First Amendment doctrine relevant to criminal prosecutions arising from January 6th. He then outlined the First Amendment issues implicated by former President Trump’s conduct and discussed how free speech claims could affect any criminal charges brought against him in connection with that conduct. Catherine Hancock and co-moderator Ellen Podgor explained the law of obstruction and how and when obstruction charges could be brought against President Trump and others in connection with the insurrection. They went on to identify some potential points of contention about the interpretation of the obstruction statute that may be influential in the success of any future prosecutions under that statute.
The group concluded by discussing how this collection of issues may overlap and impact one another as we continue to reckon with the legal fallout from the events of January 6th.