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Federal prosecutors say carrying an American flag in the U.S. Capitol in support of a “particular viewpoint” is a criminal act punishable by up to six months in prison.

In a filing in the criminal case against Jan. 6 defendant William Alexander Pope of Topeka, Kansas, the U.S. Department of Justice said carrying a flag in support of “free elections, fair elections and President Trump” constitutes a crime under Title 40 of the United States Code.

“They now allege my crime to be carrying an American flag ‘in support or disapproval of a particular viewpoint,’” Mr. Pope posted on X. “Biden has made the American flag and wrongthink a crime!”

In a court filing on May 15, Mr. Pope said: “I argue that carrying an American flag should not ever be criminal in the United States of America.”

Mr. Pope posted a video on X from the U.S. House of Representatives, showing dozens of members waving small Ukraine flags after an April vote approving $60.8 billion in military aid for the besieged country.

“Meanwhile in the Capitol,” he wrote in a caption above the video.

“This accusation is unconstitutional on face value because it criminalizes the act of carrying the American flag,” Mr. Pope wrote in a May 15 response filed with U.S. District Judge Rudolph Contreras. Mr. Pope suggested political bias is behind the government’s charge.

“The government supports President Biden using the American flag to call for ‘free and fair elections,’ but the Biden administration criminalizes the American flag being used by those who support an opposition candidate and call for free and fair elections,” he wrote.

The DOJ filing has put a new spotlight on one of the most frequently charged crimes from Jan. 6: parading, demonstrating, or picketing in a Capitol building.

The petty misdemeanor carries a maximum penalty of six months in prison. Many Jan. 6 plea agreements have been based on a single violation of the parading statute.

The statute does not apply to members of Congress or their employees, or officers or employees of Congressional committees.

Under Title 40 U.S. Code §5104, a person may not “parade, stand or move in processions or assemblages in the grounds” or “display in the grounds a flag, banner or device designed or adapted to bring into public notice a party, organization, or movement.”

Hundreds of flags were paraded about Capitol grounds on Jan. 6, including many dozens brought inside the Capitol by protesters. These included American flags, Gadsden’s “Don’t Tread on Me” flags that date to 1775, a few Confederate flags, a large selection of flags supporting then-President Donald Trump, and numerous flags disparaging incoming President Joe Biden.

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Mr. Pope won a significant victory on May 13 when federal prosecutors moved to dismiss two of the eight charges against him.

The DOJ asked Judge Contreras to dismiss Count 5, “impeding ingress and egress in a restricted building or grounds,” and Count 7, “impeding passage through the Capitol grounds or buildings.”

Mr. Pope faces a July 22 trial on the remaining six counts, however, he has asked Judge Contreras to delay the trial based on exculpatory evidence he says was not provided by prosecutors.

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