Does Congress’ counting of electoral votes really qualify as an “official proceeding”?

An Auburn-area man accused of helping to orchestrate the attack on the U.S. Capitol in January contends it does not, and in turn, he says a federal judge should drop the terrorism charges against him and other members of the extremist Proud Boys group.

During a nearly two-hour hearing Tuesday before the U.S. District Court for the District of Columbia, a lawyer for Ethan Nordean argued to Judge Timothy J. Kelly that government prosecutors have misapplied criminal charges against Nordean and three co-defendants under a part of federal criminal law aimed to protect “official proceedings” from interference.

Congress’s act to certify Electoral College votes from a presidential election doesn’t qualify as an “official proceeding,” attorney Nicholas Smith argued, because a bevy of case law has defined such proceedings as events involving an investigative purpose or truth-finding inquiry.

“You have a massive presentment problem” with charges in the case, Smith told the judge. “This problem is not fixed and it needs to be fixed. The right facts were not put forward to the grand jury.”

Special Assistant U.S. Attorney James I. Pearce countered that any proceeding before Congress, “where you have a presiding official gaveling in,” the two houses of elected representatives, clearly meets the threshold of an “official proceeding” under the law.

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“You really don’t need to go much further than that,” Pearce said.

Nordean’s defense seeks to dismiss a grand jury’s 18-page superseding indictment, handed up in March, that accuses him and three co-defendants — Joseph Biggs of Florida, Zachary Rehl of Pennsylvania and Charles Donohoe of North Carolina — of being ringleaders in the Jan. 6 riot and failed attempt to stop Congress from certifying Joe Biden’s presidential victory.

Nordean, 31, a former bodybuilder who went by the alias “Rufio Panman,” and the three other men each are described as leaders or organizers of Proud Boys chapters in their home states, according to the indictment.

All of the men have been held in federal detention while awaiting trial on six federal criminal counts: conspiracy, obstruction of an official proceeding, obstruction of law enforcement during civil disorder, destruction of government property, entering and remaining in a restricted building and disorderly conduct. All of the men have pleaded not guilty.

Tuesday’s hearing delved deeply into arguments over the text contained in part of the federal criminal code related to the obstruction charge, which carries with it a sentence of up to 20 years in prison.

Last week, lawyers for Nordean and Biggs also argued that both should be released on bail, with Smith contending that the government hasn’t met its burden to prove Nordean still remains a danger to the community or a flight risk.

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Nordean’s father, who owns Wally’s Chowder House in Des Moines, has agreed to post bond of $1 million, and his home near Auburn is actively monitored by surveillance video to ensure Nordean won’t violate conditions for release, Smith told the judge.

Since last week’s bail hearing, Smith also has contended in court filings that a federal prosecutor’s recent attempts to get Rehl, a co-defendant being held in Philadelphia, to wear a wire and cooperate with the prosecution was improper and should factor into the judge’s consideration to release Nordean.

Federal prosecutors deny that their communications with Rehl have been inappropriate and say they’re not relevant to the bail matter.

Kelly said Tuesday he would rule on the pending bail and dismissal motions by Oct. 26, which is case’s next hearing date. The judge also tentatively scheduled jury selection to begin on May 18 for a six-week trial, should the case ultimately proceed.