The upshot is that Trump lost. He has no immunity and can be sued for damages for the insurrection. In contrast, almost all of Trump’s election fraud lawsuits were dismissed at this stage.
II. Jan. 6 defendants are raising a creative defense. It isn’t working.
I wrote this piece for the Washington Post this week. You can read it on the Washington Post website, or here ⤵️
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More than 275 Jan. 6 defendants have already been charged with obstructing an official proceeding under that law. Defense lawyers have been trying, so far without success, to throw out charges under this section of the U.S. Code on various grounds. Some defendants, for example, argued that the law doesn’t apply to electoral count votes. Others argued that the statute is unconstitutionally vague.
These arguments have some merit, but they appear to be heading toward the junk heap of failed defenses.
Defense arguments focus on the legislative history and purpose of the statute. The law was enacted in 2002 after the Enron accounting fraud scandal. On Oct. 17, 2001, the Securities and Exchange Commission informed the Enron Corporation that it had initiated a formal inquiry into its accounting practices. Two days later, Enron’s accounting firm, Arthur Andersen, launched what prosecutors called a “wholesale destruction” of documents. Later, they defended the shredding of documents on the grounds that under the law as it then stood, destroying evidence was illegal only if an official proceeding was pending.
So Congress passed the Sarbanes-Oxley Act, which included the section on obstructing official proceedings, as a comprehensive revision of corporate accounting practices. Since then, the statutory language has been used to preserve evidence in investigations of white-collar crime and penalize those who destroy such evidence.
Given this background, Jan. 6 defendants have argued that an “official proceeding” under this statute is limited to hearings where evidence is being presented and facts or rights are being determined. The counting of electoral votes, they argue, was a “ceremonial and administrative event” and not an “official proceeding” under the law. Therefore, they argue, charges brought against the insurrectionists for obstructing the counting of electoral votes should be dismissed.
So far, courts have rejected these challenges. Just last week, for example, U.S. District Judge John Bates rejected defendant Sean Michael McHugh’s claim that the statute was not intended to apply to formalities such as the certification of the electoral college vote. The court held that “official proceedings” in the statute is defined to include “Congressional proceedings,” and that there is no requirement in the plain language of the statute that requires the proceeding be evidentiary or investigative. Similarly, courts have rejected defendants’ claims that the statute is constitutionally vague and applies only to such behavior as the destruction of evidence and not the kinds of acts committed by the insurrectionists.
These obscure court victories have important implications for federal prosecutions moving forward. In his Jan. 5 speech on the attack on the Capitol, Merrick Garland explained how complex investigations work: “We resolve more straightforward cases first because they provide the evidentiary foundation for more complex cases,” he said. “Investigating the more overt crimes generates linkages to less overt ones. Overt actors and the evidence they provide can lead us to others who may also have been involved. And that evidence can serve as the foundation for further investigative leads and techniques.”
One of the many advantages for prosecutors in working their way up from the more overt crimes to the less overt ones is that they can resolve these kinds of challenges early in the process — so that as they move into more difficult cases, courts have already given the green light on using the law to obstruct an official proceeding in cases relating to the insurrection and the attempt to interfere with Congress’s counting of electoral votes.
That law offers clear advantages to prosecutors. Charging insurrectionists under 1512 (c) (2), for example, permits prosecutors to sidestep the question of whether planners of the rally intended violence. To be prosecuted under this statue, the defendant need only have intended to “obstruct, influence, or impede” the counting of the electoral votes.
Deputy Attorney General Lisa Monaco recently confirmed that the Justice Department is investigating the fake electoral college certifications that declared President Donald Trump the winner of states he lost. Because courts have already rejected claims that U.S.C. 1512(c) (2) doesn’t apply to the certification of the vote, prosecutors need only determine whether creation of the fake elector certificates was intended to “obstruct, influence, or impede” the electoral vote count. Trump’s lawyer, Rudolph W. Giuliani, has been linked to the creation of the fake electors and the scheme, and the Jan. 6 committee is reportedly trying to explore whether the White House was coordinating the effort and whether any laws were broken.
Rep. Liz Cheney (R-Wyo.), the vice chair of the House committee investigating the insurrection, hinted that the statute could reach as far as Trump. Last month, she said of Trump’s former chief of staff, Mark Meadows: “Mr. Meadows’s own testimony will bear on another key question before this committee: Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’ official proceeding to count electoral votes?”
It cannot be a coincidence or accident that she used the exact language from Section 1512 (c) (2).
Given how frequently federal prosecutors have been bringing charges under this statute (and the ease with which they are defeating challenges to this statute by defense teams), we can expect to see it used to file more charges in the future.
