The December 10 ruling was widely reported, including in Lawfare Blog:
U.S. District Judge Dabney Friedrich found that a central felony charge in a large subset of the Jan. 6 cases—“corruptly obstructing an official proceeding” —had been properly invoked and was not unconstitutionally vague. The provision has been lodged against about 270 of the more than 690 Capitol Riot defendants accused so far in federal court (about 40 percent of all cases). In many prosecutions, it is the only felony charged.
Prosecutors appear to have turned to the obstruction of an official proceeding law—which carries a 20-year maximum prison term—in lieu of invoking the more politically incendiary, rarely tested and challenging-to-prove charges of insurrection, under 18 U.S.C. §2383, or seditious conspiracy, under 18 U.S.C. §2384.
As Lawfare Blog notes, “Friedrich was appointed to the U.S.
District Court for the District of Columbia by President Trump
and previously served as an associate counsel to President George W. Bush.” Pictured below, she is a Federalist Society pick noted for having reversed Biden's eviction moratorium and also for having apparently dated Justice Brett Kavanaugh. Interesting.
The statute examined in the Friedrich ruling and obliquely referenced by Cheney is U.S. Criminal Code, 18 U.S.C., § 1512 (c )(2). It provides in pertinent part (salient language in red):
(c) Whoever corruptly—
(2) ...obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.
Taking the elements of the crime in turn, Lawfare Blog starts with the last, official proceeding:
[Judge Friedrich] found no textual basis for interpreting the phrase “official proceeding” to reach only hearings involving the taking of testimony or evidence. On the contrary, the law explicitly defines “official proceeding” to include “a proceeding before Congress” (at 18 U.S.C. 1515(a)(1)(B)),…
The question of whether the defendants’ behavior obstructed, interfered, or impeded, or attempted to do so, was easily resolved by the facts in this case, as explained in Lawfare Blog:
The specific cases before Judge Friedrich involved extremely serious allegations. Defendants Ronald Sandlin and Nathaniel DeGrave were each charged with multiple felonies for, among other things, conspiracy and assaulting six police officers.
On Dec. 23, 2020, Sandlin, a Tennessee man, wrote on Facebook that he was going to Washington, D.C. on Jan. 6 in order “to stop the steal and stand behind Trump when he decides to cross the Rubicon,”according to the indictment.
In a private conversation on Facebook, he asked DeGrave if he’d join him. “Are you down for danger bro?” Sandlin asked.
DeGrave said he was, writing: “Im [sic] bringing bullet proof clothing.”
In the car they brought “paramilitary gear, one Glock .43 pistol, an M&P bodyguard pocket pistol, two magazines of ammunition, knives, a handheld taser/stun gun, an expandable baton, walkie talkies, and bear mace,” Friedrich notes in her ruling, quoting the indictment.
“[S]hortly before the Capitol attack,” she continues (tracking the indictment), “the defendants recorded a live stream video in which Sandlin said that ‘freedom is paid for with blood’ and ‘there is going to be violence.’”
Just after 2:00 p.m., the defendants “forcibly stormed past exterior barricades and law enforcement officers, and ignored building alarms, to breach the Capitol.” They pushed several Capitol police officers guarding an exterior door to the Capitol rotunda, thus allowing the mob outside to breach the building. Sandlin attempted to rip the helmet off one of the officers. They made their way to the Senate Gallery, where they wrestled officers in order to get inside; Sandlin struck one of the officers in the back of his head. In the Senate Chamber, DeGrave shouted at the rioters to “take laptops, paperwork, take everything.”
While these egregious facts presented a slam dunk case of obstruction against these defendants, Friedrich’s ruling may leave the acquittal door open for other defendants whose conduct was not as violent or planned. This begs the question of whether the former president’s actions or inactions crossed the line into obstruction, interference, or impediment. That will depend on the evidence. Per Lawfare Blog:
…while Friedrich found that the accusations against Sandlin and DeGrave came within the “core” conduct that the law was designed to prevent, she acknowledged that “there may be [other] scenarios at the edges that present vagueness problems.”
Finally, the question of whether the defendants acted corruptly was raised. They argued that the term is unconstitutionally vague, citing a case brought against former Attorney General John Poindexter (for lying to Congress in its investigation of the Iran-Contra affair) under U.S.C., §1505, which was subsequently reversed based on the vagueness of the term “corruptly.” As a direct result of that reversal, Congress amended §1505 with §1515, that defines the term. Although Lawfare Blog does not say whether Judge Friedrich cited this subsequent amendment in her decision, she seems to have been influenced by it.
18 U.S.C., §1515(b) defines corruptly in terms of §1505, but seems equally apposite to §1512, the obstruction statute:
(b) As used in section 1505, the term “corruptly” means acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.
Lawfare Blog notes that the judge:
Reviewing other courts’ interpretations of the meaning of “corruptly,” ... found that the word had generally been construed to mean “wrongfully,” “intentionally,” or using means that were “independently criminal” or “inherently malign.”
Accepting those definitions, the case before her was a fairly easy one. “The indictment in this case alleges obstructive acts that fall on the obviously unlawful side of the line,” she wrote. “Defendants engaged in advance planning, forcibly breached the Capitol building, assaulted Capitol police officers, and encouraged others to steal laptops and paperwork from the Senate Chamber.”
Given that Judge Friedrich’s decision is a textualist ruling that rests on the plain language of the statute, should her decision be appealed to the Supreme Court, which Lawfare Blog expects it will be, the “originalist” and “contextualist” majority on the Court might very well affirm it.
If they do affirm, then the Court will set a precedent for other defendants charged with that crime. As noted above, whether the former president's behavior before or during the Capitol Riot rises to the level of a corrupt obstruction of an official proceeding, namely, the counting of the Electoral College votes, depends on the facts that emerge. But even if his actions or inactions did not cross the line Judge Friedrich seemed to draw, might they support a charge of conspiracy to obstruct an official proceeding, founded on the conviction of one or more Capitol rioters?
The relevant conspiracy statue is 18 U.S.C., §371 (salient language in red):
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
The following model jury instructions issued by the Third Circuit Court of Appeals indicate the evidence required to prove the elements of the crime of conspiracy. First, conspiring requires some type of agreement (salient language in red) :The government does not have to prove the existence of a formal or written agreement, or an express oral agreement spelling out the details of the understanding. The government also does not have to prove that all the members of the conspiracy directly met, or discussed between themselves their unlawful objective(s), or agreed to all the details, or agreed to what the means were by which the objective(s) would be accomplished....What the government must prove beyond a reasonable doubt is that two or more persons in some way or manner arrived at some type of agreement, mutual understanding, or meeting of the minds to try to accomplish a common and unlawful objective.
You may consider both direct evidence and circumstantial evidence in deciding whether the government has proved beyond a reasonable doubt that an agreement or mutual understanding existed. You may find the existence of a conspiracy based on reasonable inferences drawn from the actions and statements of the alleged members of the conspiracy, from the circumstances surrounding the scheme, and from evidence of related facts and circumstances which prove that the activities of the participants in a criminal venture could not have been carried out except as the result of a preconceived agreement, scheme, or understanding.
Absent some direct communication or relationship between the former president and a person convicted of obstructing the Electoral College vote count, was his invitation to millions of his followers on social media to come to D.C., "It will be wild!" enough to create a "meeting of the minds?" Was his exhortation at the Stop the Steal rally to "march down Pennsylvania Avenue to the Capitol" enough? I don't know. There is common sense, and then there is the law. What is clear is that, if there is no "agreement, mutual understanding, or meeting of the minds," there is no conspiracy and the case falls apart.
If the former president did conspire, however, then the government must prove that he knowingly and intentionally joined the conspiracy, which seems to me to be a much lighter lift (salient language in red):
If you find that a criminal agreement or conspiracy existed, then in order to find (name) guilty of conspiracy you must also find that the government proved beyond a reasonable doubt that (name) knowingly and intentionally joined that agreement or conspiracy during its existence. The government must prove that (name) knew the goal(s) or objective(s) of the agreement or conspiracy and voluntarily joined it during its existence, intending to achieve the common goal(s) or objective(s) and to work together with the other alleged conspirators toward (that) (those) goal(s) or objective(s).
The government need not prove that (name) knew everything about the conspiracy or that (he) (she) knew everyone involved in it, or that (he) (she) was a member from the beginning. The government also does not have to prove that (name) played a major or substantial role in the conspiracy.
Third, the government must prove the former president joined the conspiracy to help further its goals:
In order to find (name) guilty of conspiracy you must find that the government proved beyond a reasonable doubt that (name) joined the conspiracy knowing of its objective(s) and intending to help further or achieve (that) (those) objective(s). That is, the government must prove: (1) that (name) knew of the objective(s) or goal(s) of the conspiracy, (2) that (name) joined the conspiracy intending to help further or achieve that (those) goal(s) or objective(s), and (3) that (name) and at least one other alleged conspirator shared a unity of purpose toward (that) (those) objective(s) or goal(s).
This instruction seems to be a combination of the first two.
Fourth, the government must prove that there was some act committed in furtherance of the conspiracy (the salient language is in red):
With regard to the fourth element of conspiracy – overt acts – the government must prove beyond a reasonable doubt that during the existence of the conspiracy at least one member of the conspiracy performed at least one of the overt acts described in the indictment, for the purpose of furthering or helping to achieve the objective(s) of the conspiracy.
The government does not have to prove that all of these acts were committed or that any of these acts were themselves illegal. Also, the government does not have to prove that (name) personally committed any of the overt acts.
Importantly, the conspiracy need not have succeeded in order for conspiracy to be proven. As we know, the Electoral College votes were eventually counted.
These are the legal issues to be considered, and if they come into play, it will be because of the facts. That is, whether the House Select Committee (above) refers the former president to the Department of Justice for a criminal investigation for obstruction of Congress and/or for conspiring with convicted defendants like Sandlin and DeGrave to obstruct Congress will depend on what the Committee discovers during its hearings. But politics are at least as important as the facts here.
The Department of Justice need not wait for a referral by the Select Committee to begin its own investigation into the former president's actions or inactions around January 6. Referral or no referral, such a decision is a matter
of prosecutorial discretion, which in this instance would be especially politically fraught. Given that, a referral to investigate might make the decision seem less political. Is the Department of Justice waiting, or has it begin its own investigation? We don't know.
Might such a referral be made? It has been widely reported since the Friedrich decision, including in Politico, that the House Select Committee is looking into precisely this issue:
Twice this week, committee vice chair Rep. Liz Cheney (R-Wyo.) has raised the possibility that Trump's conduct while a mob of his supporters overtook the Capitol could qualify as an effort to obstruct the certification of Joe Biden's victory. Cheney described that as a “key” topic facing the panel, particularly as it seeks the testimony of one of Trump’s onetime closest aides, former White House chief of staff Mark Meadows.
“Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’ official proceeding to count electoral votes?” Cheney asked Tuesday as she urged colleagues to hold Meadows in contempt of Congress for refusing to be deposed.
If the Select Committee finds sufficient evidence for a referral, might Attorney General Merrick Garland accept it? Would he consider an obstruction or a conspiracy charge against the former president? Here is what he said in an address to the Department of Justice on January 5, 2022 (emphasis in red):
Approximately 40 defendants have been charged with conspiracy to obstruct a congressional proceeding and/or to obstruct law enforcement. In the months ahead, 17 defendants are already scheduled to go to trial for their role in felony conspiracies.
The actions we have taken thus far will not be our last.
The Justice Department remains committed to holding all January 6th perpetrators, at any level, accountable under law — whether they were present that day or were otherwise criminally responsible for the assault on our democracy.
We will follow the facts wherever they lead.
Understated and understandably bland. Inscrutable is the word that comes to mind. Perhaps he is mindful of Friedrich's red line. Or maybe he understands the difficulty of proving a conspiracy when one of the potential co-conspirators never puts anything in writing and is always indirect when he speaks.
If Garland does, however, pursue such an investigation, might President Biden, who in his inaugural address committed to an independent Department of Justice, support it? Here is what he said---and didn’t say-- about the law and his duty to enforce it in his national address from Statuary Hall on January 6:
You can't obey the law only when it's convenient.
Those who stormed this Capitol and those who instigated and incited and those who called on them to do so held a dagger at the throat of America, at American democracy.
I did not seek this fight right to this Capitol year ago today, but I will not shrink from it either. I will stand in this breach. I will defend this nation, and I will allow no one to place a dagger at the throat of democracy.
Strong words, but….Biden didn’t mention the ongoing January 6 criminal investigations or prosecutions by the Department of Justice in general. He didn’t mention the Department of Justice by name, nor did he charge Garland with investigating the former president or his supporters. He didn’t mention the rule of law, except once to allude to the concept, saying, “We're a nation of laws, of order, not chaos, of peace, not violence.” He didn’t mention accountability. Yet his message was unmistakably directed at the former president’s culpability in creating, spreading, and using a lie to provoke violence at the Capitol on January 6:
So let's speak plainly about what happened in 2020. Even before the first ballot was cast, the former president was pre-emptively sowing doubt about the election results. He built his lie over months. It wasn't based on any facts. He was just looking for an excuse, a pretext to cover for the truth.
Those who incited the mob, the real plotters who are desperate to deny the certification of this election, and defy the will of the voters.
Regrettably, lying while not under oath, even by the President of the United States, is not a crime. Conspiring to obstruct a Congressional proceeding—the certification of the Electoral College votes that gave 306 to Biden and 232 to his opponent--on the other hand is.
Does that mean Biden will let the DOJ dogs out? Does it mean he will at least not discourage a criminal investigation led by Garland into the former president’s actions and inactions up to and including January 6th? Hard to say. Biden’s speech was aimed at dispelling lies and stating the truth about the 2020 election. That speech could encompass the extent of his involvement in the matter, which would be a crying shame. Or it could be just the beginning, which would be the prosecution of a shameful crime.
Keep it real! And wear your damn mask--especially if you're in prison!
Marilyn
P.S. For more on possible legal avenues to holding responsible the people who planned, assisted, or funded the attempt to overturn the Electoral College vote and those who organized or encouraged the mob attack on the Capitol (including the former president), see this guest essay in The New York Times. Note that there are opposing views, and some legal scholars believe criminal liability will be difficult to prove beyond a reasonable doubt.
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