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“Making a fool of yourself in Congress is what America is all about,” argued Carmen Hernandez, legal counsel for another Oath Keeper. Both Fischer and Hernandez noted that the law has never been applied to a demonstration in Congress. Hernandez raised the 2018 protests in Congress against Supreme Court Justice nominee Brett Kavanaugh as an example of similar behavior.

“Yes, but they weren’t charged with obstruction of an official proceeding,” Mehta shot back.

Exactly.

Mehta isn’t the only judge handling January 6 cases who is challenging the government’s standing on the obstruction charge. In a hearing last month for two defendants also seeking dismissal of the obstruction count, Judge Randolph Moss warned it faced a “constitutional vagueness problem.” The American people, Moss cautioned, will demand a clear legal “line” between protected activity and criminal misconduct related to political protests...