Supreme Court Won’t Hear Jan. 6 Appeal of Former DEA Agent Mark Ibrahim

Justices put off a decision on three Jan. 6 appeals challenging controversial 20-year felony obstruction of Congress charge.

The U.S. Supreme Court is seen in Washington on June 16, 2023. Saul Loeb/AFP via Getty Images

The U.S. Supreme Court has refused to take up the appeal of a former Drug Enforcement Administration special agent who is being prosecuted for carrying his service weapon on U.S. Capitol grounds on Jan. 6, 2021.

The High Court on Dec. 11 rejected a petition for review by Mark Sami Ibrahim, 35, of Anaheim, Calif., who argued the charge of illegally carrying a weapon on Capitol grounds should be dismissed because, as a federal agent on Jan. 6, he was legally allowed to carry his service pistol.

The court’s denial of Mr. Ibrahim’s petition means his case will proceed on 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’s criminal case was put on hold by U.S. District Judge Timothy Kelly while the Supreme Court petition was pending. In March, Judge Kelly denied a motion to dismiss Count 3 of the indictment, which charged Mr. Ibrahim under 40 U.S. Code § 5104 for having a firearm on Capitol grounds.

The U.S. Court of Appeals for the District of Columbia Circuit dismissed Mr. Ibrahim’s challenge of Judge Kelly’s ruling on June 2 and denied a rehearing of the dismissal on Sept. 11.

Mr. Ibrahim’s appeal argued that even though he was off-duty on Jan. 6, he was legally authorized by federal law to carry his service weapon on Capitol grounds. DEA regulations encourage agents to carry their weapons and credentials at all times, the appeals petition said.

“At the time, I was a credentialed DEA special agent. I’m allowed to carry my gun anywhere,” Mr. Ibrahim said in the documentary “Capitol Punishment.”

“My gun was never unholstered. I never pointed my badge or gun at anyone.”

Attorneys Marina Medvin and Theodore Cooperstein wrote in the Supreme Court petition that the prosecution of their client “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.”

Because Mr. Ibrahim has not yet gone to trial, he still has many options for appeal, Ms. Medvin told The Epoch Times in a statement.

Former DEA Special Agent Mark Ibrahim is being prosecuted for having his service weapon at the Capitol on Jan. 6, 2021, something he said he was legally allowed to do. Capitol Punishment/Bark at the Hole Productions

“Unlike defendants seeking certiorari post-conviction, Mark was seeking redress in the middle of a pending case—on the issue of being forced to go to trial on a charge to which, we argued, he has a type of prosecutorial immunity by virtue of an exemption within the statute itself,” she said.

“Mark Ibrahim is in an interesting position—while his interlocutory appeal was denied, he is only mid-way through his case,” Ms. Medvin said. “Mark hasn’t been tried or convicted. His ability to appeal a variety of legal issues is still ahead of him. Mark’s doors are still open.”

Ms. Medvin earlier secured the dismissal of Count 4, which charged her client with making a false statement to the FBI.

Obstruction Appeals

The Supreme Court did not issue a decision on petitions by three Jan. 6 defendants who are challenging the U.S. Department of Justice’s novel use of an evidence-tampering law—18 U.S. Code §1512(c)(2)—to prosecute defendants, including former President Donald Trump, for felony obstruction of Congress.

The petitions of Edward Jacob Lang, 28, of New York, Garret A. Miller, 37, of Richardson, Texas, and Joseph Wayne Fischer, 57, of Jonestown, Pa., were scheduled for the Court’s Dec. 8 private conference. No decision was announced in the Court’s Dec. 11 regular list of orders.

A decision could still come before the end of December, or the cases could be re-listed for the Court’s Jan. 5 conference.

Corruptly obstructing an official proceeding is the most commonly charged Jan. 6 felony. It carries a potential 20-year prison term. Nearly 330 defendants have been charged with obstructing the counting of Electoral College votes, according to a Dec. 6 DOJ update.

President Trump was charged in August with counts related to obstruction of the joint session of Congress on Jan. 6, 2021. A grand jury indicted him for obstruction and attempted obstruction of an official proceeding, and conspiracy to obstruct an official proceeding, among other counts.

United States District Judge Carl Nichols threw out the §1512(c)(2) obstruction charge against Mr. Miller on March 7, 2022,  Mr. Fischer on March 17, 2022, and Mr. Lang on June 7, 2022.

Joseph W. Fischer in a crowd that prosecutors say pushed against a police line on Jan. 6, 2021. U.S. Department of Justice/Screenshot via The Epoch Times

The subsection of 18 § U.S.C. was approved by Congress as part of the Sarbanes–Oxley Act of 2002 to close a loophole in the law that was discovered in the wake of the Enron corporate fraud and accounting scandal.

In a 29-page ruling in the Miller case, Judge Nichols wrote that the subsection was intended by Congress to have a narrow, limited focus related to the destruction of documents. It is part of a section of the U.S. Code titled “Tampering with a witness, victim, or an informant.”

The DOJ appealed all three cases to the U.S. Court of Appeals for the District of Columbia Circuit. A three-judge panel issued a fractured ruling on April 7, 2023, that conditionally reversed Judge Nichols but created a great deal of confusion. All three defendants filed appeal petitions with the Supreme Court in the following months.

Preventing the joint session of Congress from tallying the Electoral College votes from the 2020 presidential election “constitutes evidence-focused obstruction,” the DOJ wrote in its filing with the Supreme Court, likening what protesters did at the Capitol to locking up evidence from the election in a vault where it couldn’t be accessed.