The U.S. Supreme Court has set a conference for Dec. 1 on whether to accept two key Jan. 6 case appeals—one involving a federal agent who carried his firearm at the U.S. Capitol and the other on the Department of Justice’s controversial use of evidence-tampering law to prosecute Jan. 6 defendants for felony obstruction of Congress.
If either or both of the petitions are accepted, it will be the first time a Jan. 6-related case is reviewed by the Supreme Court.
On Nov. 14, the court listed both cases as "distributed for conference" on Dec. 1.
Defense attorney Marina Medvin, who is involved in both cases, said it should be clear by Dec. 4 if the court will issue orders, accept or reject the petitions for review, or hold the cases over for another conference.
Dozens of Jan. 6 defendants have already been convicted under the law, which has never been used in such a way since it was implemented in 2002 as a means to curb corporate financial fraud.
Attorneys for Mr. Lang and three other Jan. 6 defendants who filed an amici curiae brief in the case say the DOJ’s weaponization of the statute represents dangerous prosecutorial overreach.
"Every American will be at the whim of any prosecutor to terrorize them.”
The DOJ said the High Court should not intervene, allowing the prosecutions to proceed.
DEA Agent's HandgunThe second case involves the prosecution of a former Drug Enforcement Administration (DEA) agent for carrying his service pistol and credentials onto Capitol grounds on Jan. 6.
Mark Sami Ibrahim, 35, of Anaheim, Calif., faces three federal charges: entering and remaining in a restricted building or grounds with a deadly or dangerous weapon, carrying a firearm on Capitol grounds, and injuries to property for climbing on a statue at the edge of Capitol grounds.
Mr. Ibrahim comes from a military and law-enforcement family. Before joining the DEA, he served for years in U.S. Army intelligence. His brother is an Army veteran who became an FBI special agent. His sister is a U.S. Navy veteran, and his mother was at the Pentagon on Sept. 11, 2001.
"The prosecution of this case breaks faith with countless federal law enforcement officers who make themselves available around the clock, 24-7, and carry their agency-issued weapons per agency directives," the document states.
"Failure to address the question of the law’s exemption breeds uncertainty and shakes any remaining confidence of the public and the law enforcement officers in the application of the laws."
The U.S. Court of Appeals for the District of Columbia Circuit dismissed Mr. Ibrahim's appeal on June 2, and denied a rehearing of the dismissal on Sept. 11.
Ms. Medvin earlier secured the dismissal of Count 4, which charged her client with making a false statement to the FBI.
She has also argued that Mr. Ibrahim is the victim of selective prosecution by the DOJ, which she said targeted her client because of his political beliefs.
Mr. Ibrahim witnessed Ms. Babbitt being rushed from the Capitol by paramedics, bleeding so much it streamed off the gurney onto the sidewalk.
Mr. Ibrahim attended the Jan. 6 protest with his brother, an FBI special agent. He didn't enter the Capitol and stopped at least one person from entering the building.
In DOJ charging documents, prosecutors included numerous photos of Mr. Ibrahim allegedly "flashing" his gold shield and handgun on Capitol grounds. He also posed with protesters for photos in which his badge and gun were visible.
In his interview with the FBI, Mr. Ibrahim said to the best of his recollection he did not show his badge or gun. The DOJ obtained a personal photo taken by a friend showing Mr. Ibrahim holding one side of his coat open. His badge and service weapon are visible.
"At the time I was a credentialed DEA special agent. I'm allowed to carry my gun anywhere," Mr. Ibrahim told Mr. Searcy. "My gun was never unholstered. I never pointed my badge or gun at anyone."
Mr. Ibrahim came to the Stop the Steal rally with a longtime friend named Jorge, whom he met while serving with the U.S. Army in Iraq.
"Jorge has been an FBI informant for a number of years. He knew that the city was going to be locked down pretty hard, and he asked me to bring him to the rally. He knew that I was an active DEA special agent. He knew that I was armed. I think he wanted protection."
The FBI claims that Jorge told them he was not there on Jan. 6 in any formal FBI capacity, and Mr. Ibrahim made that story up to "cover his a**."
In "Capitol Punishment," however, Mr. Ibrahim supplied screenshots of texts he said were sent between Jorge and his FBI handler. In one exchange, the FBI agent wrote, "Ok, well we have an interest in what happens, and we would be very appreciative if you could collect and (sic) all info."
Mr. Ibrahim carried a "Liberty or Death" Troutman flag and a Betsy Ross flag at the Capitol, the DOJ said in its charging documents.
At about 3:30 p.m., he stood on the Peace Monument and shot a video, resulting in the charge of stepping or climbing on, removing, or in any way injuring any statue.
"This case presents an important issue of federal law enforcement liability with nationwide impact," Ms. Medvin and appeals attorney Theodore Cooperstein wrote in Mr. Ibrahim's Supreme Court petition.
"This case involves a question of exceptional importance because the Court’s ruling will affect the operations of federal law enforcement in safeguarding not only the U.S. Capitol but any other federally protected site nationwide and subject to such a law."