How Legal Certainty about 1512(c)(2) Has Wobbled Even as Certainty Trump Violated It Increased

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In the past year, those who believe Trump could and should be held accountable for January 6 reached near unanimity that he should be charged with obstruction of the vote certification — 18 USC 1512(c)(2).

In the same year, certainty about how the law applies to January 6 has wobbled, with one appeal pending before the DC Circuit (which will be appealed no matter how it comes out), and either an expansion of this appeal or a follow-on one virtually certain. All that uncertainty may not change DOJ’s determination to use it; under all but the most restrictive appellate rulings, it should still easily apply to Trump and his ilk, though not necessarily all the January 6 rioters who’ve already been prosecuted with it.

But DOJ probably won’t know exactly how it’ll apply for at least six months, maybe another year.

This post will attempt to explain what has happened and what might happen going forward.

1512(c)(2) reads:

Whoever corruptly otherwise 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.

You need an official proceeding — here, Congress’ vote certification mandated by the 12th Amendment, you need an attempt to obstruct it, and you need corrupt purpose. The “otherwise” here is at the center of the legal dispute, meaning how this clause relates to the rest of the obstruction statute is under dispute. But depending on that relationship, the obstruction statute has the advantage of including a potential 20 year sentence, an explicit conspiracy charge, with enhancements under the sentencing guidelines for things tied to the degree of obstruction and the use of violence that offers a good deal of flexibility to tailor sentences ranging from 4 months to 6 years (and hypothetically far higher).

At first, lawyers not following the actual DOJ investigation imagined that Trump could be held accountable for January 6 on an incitement model; indeed, that’s what Congress used in impeachment. But from the start, DOJ charged many of the rioters who premeditated their effort to stop the vote certification with obstruction. It charged Oath Keepers Jessica Watkins and Proud Boy Joe Biggs with obstruction from their initial arrest affidavits on January 16 and 19, 2021, respectively. A jury found Watkins guilty of obstruction (but not seditious conspiracy) on November 30, 2022, and Biggs’ obstruction and sedition conspiracy trial kicked off last Thursday.

In July 2021, I argued that Trump (and any of members of Congress prosecuted) would be charged with obstruction, not incitement. I repeated and expanded that argument in August 2021. In her December speech calling to hold Mark Meadows in contempt, Liz Cheney invoked obstruction as the crime under consideration, which led TV lawyers, almost a year after the fact, to consider Trump’s conduct using the frame of obstruction. In March, Judge David Carter ruled it more likely than not that Trump and John Eastman had attempted to obstruct the vote certification (adopting the 9th Circuit standard for corrupt purpose).

At that point, 14 months after the attack, everyone was in agreement: That’s how Trump could be held accountable. By prosecution under 18 USC 1512(c)(2).

But starting in a November 22, 2021 hearing in the case of Garret Miller, former Clarence Thomas clerk Carl Nichols explicitly raised questions about whether obstruction could apply to the President. In March, even before Judge Carter’s ruling, Nichols ruled that while the vote certification counted as an official proceeding, obstruction required the involvement of documents. In refusing to change his mind on reconsideration, Nichols also noted the discrepancy among DC judges as to what “corruptly” means in the statute.

And that’s how on December 12, 2022, almost two years into this process and a month after the appointment of a Special Counsel, former Trump White House lawyer Greg Katsas, Mitch McConnell protégé Justin Walker, and Biden appointee Florence Pan came to consider how 1512(c)(2) would apply to January 6. On paper, the question they were reviewing pertained to Nichols’ ruling that obstruction under 1512(c)(2) must involve documents. But along the way, the Republican judges invited both sides to weigh in on both how to define corrupt purpose under the statute and, procedurally, how to address it if they were going to rule on it (that is, whether to issue a ruling now, or to remand it back to Carl Nichols only to be appealed after he rules).

Defendants have challenged whether the vote certification counts as an official proceeding too, and I don’t rule out that this Supreme Court, would insert itself into that issue as well, especially given that protests associated with the Brett Kavanaugh confirmation have, from the start, been raised as an inapt parallel to January 6.

It has been a month since the DC Circuit ruling, so they could rule anytime. In the hearing, Katsas seemed inclined to rule for defendants on requiring obstruction to include a documentary component and to intervene to sharply narrow corrupt purpose. Walker seemed to start out in the same camp, but by the end may have come around to splitting his ruling, ruling with DOJ on the documents question but with defendants on the corrupt purpose one. Importantly, he seemed to favor tying “corrupt purpose” to some personal benefit. Pan, who presided over some of these cases before being elevated to the Circuit, seemed inclined to rule with DOJ on both counts.

Whatever the DC Circuit decides, it will be appealed.

If DOJ loses, they’re likely to ask for an en banc review, where they would not face a panel with a majority of Trump appointees. If the defendants lose, they’re likely to appeal it to SCOTUS, where they’d be guaranteed a conservative majority. If the DC Circuit remands the “corrupt purpose” issue — procedurally the correct thing to do — it might be another nine months before DC Circuit gets it back. And then that decision will be appealed by the losing side, to the full panel or SCOTUS. Plus there’s a minor issue on a Trevor McFadden ruling that will be appealed too, how much of a penalty to impose at sentencing.

There will not be certainty on how 1512(c)(2) applies to January 6 before June, and such certainty might not come until next June.

With rioters, DOJ has responded to these legal challenges by adopting several backstop positions. With edge cases, it allowed defendants accused of obstruction to plead down to the more serious misdemeanor, 18 USC 1752. With defendants who had some kind of confrontation with the cops, they have charged civil disorder, 18 USC 231. At the beginning of this process, there were the same kind of appellate challenges to 231, too, but those have been significantly resolved. With the Oath Keepers and Proud Boys, DOJ has also added 18 USC 372 charges, conspiracy to prevent Congress from doing its duty of certifying the vote count.

To see how those backstops would work, consider the Oath Keepers found guilty in the first sedition trial. If the obstruction verdict against all five were thrown out, Stewart Rhodes and Kelly Meggs would remain jailed on sedition guilty verdicts, Kenneth Harrelson and Jessica Watkins would remained jailed on 372 verdicts (as well as civil disorder in Watkins’ case), Thomas Caldwell’s other obstruction conviction — obstructing the investigation by destroying evidence — would stand, as would those of Rhodes, Meggs, and Harrelson. There seems to be some movement on plea bargaining in the third Oath Keepers group, which suggests DOJ may be offering some of them 231 pleas as well.

And because of that mens rea requirement, DOJ has had limited success in getting obstruction convictions. A jury hung on obstruction with Riley Williams, and Judge Amy Berman Jackson just acquitted Joshua Black of obstruction as well. Both Williams and Black were found guilty of other felonies.

As I said above, even if the DC Circuit or SCOTUS adopts the most restrictive rulings on existing challenges, an obstruction charge against Trump still should survive. That’s because Trump’s obstruction, which included the recruitment of fake electors to create falsified certificates that members of Congress could use to justify their vote challenges, entails a documentary component that should meet Nichols’ standard. And while the most restrictive imaginable definition of corrupt purpose would include a desire for personal benefit, Trump was seeking the most craven personal benefit of all: to remain President even after voters had fired him.

But the further you get from Trump, the harder proving such a corrupt purpose would be. Did Mark Meadows do what he did because he wanted to remain in a powerful White House position? Did John Eastman do what he did because he was seeking personal benefit? Did Peter Navarro? Did the lower level aides who flew fake elector certificates from state to state? Many of them did what they did because they believe Democrats are illegitimate, just like Clarence Thomas and Sam Alito do, or resent them like Brett Kavanaugh does, and so even that kind of ruling would constrain 1512’s applicability to the stuff that Jack Smith has been appointed to investigate.

Plus, if SCOTUS rules (perhaps driven byBrett Kavanaugh’s ever-festering resentment) that non-investigative Congressional proceedings are not official proceedings, then 18 USC 1512(c)(2) wouldn’t even apply to Trump.

As I alluded to in passing recently, one reason I think the scope of what has become the Jack Smith investigation has expanded, beyond the fact that it is investigating real corruption and the fact that numerous witnesses may be exposed on one part of the scheme and so could be coerced to cooperate on other parts of the scheme, is to backstop the Trump investigation. If you charge fraud based on raising money off false claims about vote fraud, and charge campaign finance violations tied to violating PAC rules, and charge  conspiracy to defraud the US, forgery, and extortion tied to the fake elector plot, then it meets the standard for corrupt purpose that Dabney Friedrich adopted on 1512(c)(2): otherwise illegal activity.

But it also ensures that if SCOTUS throws out the obstruction charge for anyone for January 6, even someone corruptly seeking to remain President after being fired, those other charges would backstop the main charge, just like 18 USC 372 and civil disorder are backstopping charges against the Oath Keepers.

I think Trump has exposure on other charges, too. I believe Trump has exposure to aid and abet charges tied to the assaults his armed mob committed; that’s a lonely position, but I’ll take Amit Mehta’s opinion on the issue over virtually anyone else’s. I’m increasingly confident DOJ is trying to charge Trump in a conspiracy, via at least Alex Jones and Roger Stone, with the Proud Boys and other militias (though what that conspiracy would be depends on the Proud Boy jurors and the various appellate rulings). I wouldn’t be surprised if DOJ used 372 as a backstop with people like Trump, Eastman, and Meadows, just like they did with the two militias.

And DOJ is no doubt doing a similar kind of analysis as it considers whether and if so, how, to charge others who tie Trump and his associates with the crime scene, along with people who, independently of the White House efforts, funded or otherwise abetted the attack. None of that will entirely hold off further charges; in September, DOJ charged Kellye SoRelle, who has ties to the Oath Keepers, Latinos for Trump, and Trump’s efforts to undermine votes in some states, with three counts of obstruction (one of which would not be affected by these appellate issues). But her case has been continued until March. And, in part, because of the centrality of the Proud Boys case to where things go from here, I expect a lot to remain in flux until then on a bunch of other cases.

No matter how much work Jack Smith and his team get accomplished in the weeks ahead, it will be hamstrung by appellate uncertainty around the one charge, most everyone agrees, that should be used to hold Trump accountable.

Resources

Opinions upholding DOJ’s interpretation of 1512(c)(2)

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean; May 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh; May 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes; May 26, 2022, Fitzsimons (post-Miller)
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli
  15. Royce Lamberth, May 25, Bingert

Carl Nichols’ interventions:

DC Circuit proceedings

Amit Mehta opinion ruling it plausible that Trump conspired with rioters and the militias: February 18, 2022

David Carter opinion ruling, on 9th Circuit standard, it more likely than not that John Eastman and Trump obstructed vote certification: March 28, 2022

January 6 Committee Executive Summary, including referral for obstruction and other crimes: December 19, 2022

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45 replies
  1. Fraud Guy says:

    So this is why prosecutors don’t like charging novel theories; it takes too long to get all of the challenges worked out through the system.

    • emptywheel says:

      It wasn’t THAT novel. But with 250 people charged every bit is going to be challenged.

      What’s novel is an attack by the President on Congress.

      • Rugger_9 says:

        Add to that the RW embrace of DARVO principles across the board and that invariably means pulling every lever to delay as long as possible.

        The courts do have to consider valid (or potentially valid) challenges until the litigants run out of options to try. It’s protection for the innocent too. That takes a very long time.

        What interests me is that when the shoe is on the other foot, the RWNM demands instant executions with trials worthy of the Queen of Hearts in Wonderland. Between ‘Lock her up’ for HRC or denial of appeals in capital cases in the name of ‘streamlining’ the process one wonders how the RW would handle Lincoln’s observation on slavery pre-war. IIRC, it went something like this when he was listening to someone expounding on the virtues of the peculiar institution: he wanted to see if the speaker felt the same way if slavery was applied to him personally.

  2. dude says:

    “..obstruction required the involvement of documents”… Not a lawyer. Could you please give me an example of what is meant by this? It sounds to me as though obstruction means forgery or the like, but if I stopped the President from being sworn-in on the podium, it would not be obstruction. I am obviously missing something here.

    • emptywheel says:

      That’s a pretty good summary. MOSTLY, they’d be talking about altering or deleting docs. The rule was written in the aftermath of Enron, so think document destruction. But creating and submitting to NARA false documents to obstruct the vote count probably applies as well, especially if you can argue they violated the state laws in question.

    • Silly but True says:

      The entire context of 1512, is entitled “Tampering with a witness, victim, or an informant.”

      Congress added this provision flowing out of the “Witness and Victim Protection Act” and Congress ostensibly originated the law to disincentivize the whacking of mob witnesses and informants going to criminal trial, which was very much a thing.

      When people suggest “novel” application, then, it’s to apply it to non-Judicial / non-court proceedings.

      Critics hammer DoJ for language creep in seeking to apply it to any government proceeding, and extent that proceeding was sought to be corruptly influenced, etc.

      This is reason for the lack of judicial consensus, and why Jan. 6 defendants are at least attempting to get the charge tossed.

      The arguments go that laws are valid for their plain language meaning, in which 1512(c)(2) is expansive — versus the laws’ legislative intent, etc., to which the “document” and “corrupt” spectrum comes into play that might get these charges tossed.

  3. freebird says:

    Back when the hubbub about Hillary’s emails were in vogue, I checked the White House’s web site regarding classification. They produced a memo concerning who were classifiers and de-classifiers. The memo stated that the president, vice-president and secretary of state in that order had the authority to classify documents. Some documents got de-classified and then re-classified after review by classifiers other than the top three. Some the classifications were arbitrary based on differences of opinions.

    The issue with Biden is that these no one cared about the documents in question. They were so unimportant that no one knew that they were missing. It was like the ark stored deep in the warehouse in that Indiana Jones movie after all the rigmarole to obtain the ark.

    With Trump, archivists knew the documents were missing and the return was requested which Trump rejected.

    Documents that are in the public domain can be classified as top secret that everyone knows. Some secret.

    [Welcome back to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. You’ll note I’ve reverted your username on this comment from “MITCH” to “freebird” as you have previously used that name. I suggest sticking with that name which complies with the 8 letter policy. Thanks. /~Rayne]

    • c-i-v-i-l says:

      “16 agencies have designated 671 Top Secret level OCAs [Original Classification Authorities] [and] 817 Secret level OCAs” (https://www.archives.gov/files/isoo/reports/isoo-2021-annual-report-to-the-president-final.pdf), and there are even more people who can classify things but aren’t Original Classification Authorities. The President can declassify anything. Others can declassify documents that they themselves classified or that were classified by someone they supervise.

      I’m astounded by how poorly the government tracks classified materials. The libraries around the country know when something is checked out. The government should also know this for classified materials (of which there are too many).

      • freebird says:

        I became so much more knowledgeable about government processes during the Obama administration in order to understand Republican the fretting and freak-outs. A lot of it was sound and fury that signified nothing.

        I agree that too much stuff is classified. But, what Trump did was to deliberately flout the law. Every item that the President of the United States sees goes to the National Archives. Trump knew this.

        Don’t get me started on the Clean Water Act as it related to the polluted water in Flint Michigan.

  4. phred says:

    Thanks so much for this EW. I appreciate your laying out the various charges and the timescale of how appeals may play out.

    This raises a question though… on what time frame do you imagine Trump might be charged given the appeals in the pipeline?

    I appreciate the fact that the rule of law is a slow process, but I fret that that slowness has the potential to allow an insurrectionist (any insurrectionist, feel free to make this is general assessment and not just Trump) to regain the Presidency and end our democracy the 2nd time having failed a 1st time.

    How do DOJ’s rules against interfering with elections, interact with a scenario such as this where Trump runs for re-election to avoid prosecution? If that prosecution is unlikely to come prior to the next election blackout period, what then? Would they prosecute a potentially sitting President for crimes committed prior to becoming President? Or do they chill until he’s out of office again and hope for another bite at the apple?

    • emptywheel says:

      I think any delay is still in obtaining witness testimony. My guess is they have a sense of the charges they would charge, they just need to make sure they can win it.

      One thing people forget is that, if they DO have cooperating witnesses, we might not know about it, even if they had entered a cooperation agreement.

      • phred says:

        Thanks again, EW : )

        So, I take it then, that if they feel they have what they need to convict, DOJ can proceed with indictments and trial even while appeals trundle along. That makes me feel better : )

        • JohnB says:

          The Trump documents fiasco happened after Trump left office. I recall that a President can be prosecuted for crimes committed while not in office. I don’t recall if an indictment could be held, until the individual leaves office. Because the Constitution does not specify anything about prosecuting Presidents.

          [Welcome to emptywheel. Please choose and use a unique username with a minimum of 8 letters. We are moving to a new minimum standard to support community security. We also have a number of community members named John which makes adequate differentiation critical. Thanks. /~Rayne]

        • Silly but True says:

          Prosecution of POTUS runs afoul of practical not Constitutional logistics.

          POTUS can fire any Exec. Branch employee, and most certainly US Attorneys. It essentially becomes the “Robocop” scenario: the subordinate would be unable to arrest/prosecute the CEO.

          The solution is impeach and remove from office first to moot this authority.

          If it manages to occur somehow, and courts miraculously manage to uphold it somehow, there is nothing barring POTUS serving from prison rather than the White House. But if it’s federal, and POTUS serves over Bureau of Prisons then you get back to similar issue. At that point, it gets into absurd role playing scenarios unlikely to occur in real world.

        • Silly but True says:

          In immediate term until that gets adjudicated by the appropriate authority, I think we’d either be facing delay in prosecution until the firing is rolled back, or perhaps an insurrection / coup d’etat if federal government personnel decided that on their own and chose to plow forward before legitimately adjudicated.

        • emptywheel says:

          One of the same OLC memos that says DOJ cannot prosecute a sitting President says that he can be charged for crimes committed while President after he leaves. It was written by one of the judges presiding over Jan6 trials, Randall Moss.

  5. Fiendish Thingy says:

    Marcy, does this mean that Trump will likely *not* be indicted for *any* January 6 crimes, including the “backstop” charges, until the appellate rulings on the obstruction charges are resolved 6-12 months from now?

  6. Amicus says:

    Given my tangent, I will preface this by saying that I agree with what is laid out in the blog post. There are numerous significant unresolved legal issues surrounding a January 6 prosecution of Trump.

    My question, is why is so little attention given to what I see as the simple story? (This is directed at large, not to this site which does tremendous work on these issues.)

    There is abundant (and apparently irrefutable) evidence that then President Trump knew the Capitol and the vote certification were under siege by violent mob. Despite repeated exhortations to stop it, he instead for hours watched it unfold. For over three hours, he did nothing to stop it. He didn’t tell the mob to go home. He didn’t call out the National Guard or any law enforcement/military assistance. He urged the mob on with his tweet that Pence had failed to act to stop the vote. (In my world of civil procedure, tweets are documents.) According to Meadows, per Cassidy Hutchinson, Trump didn’t want to stop it. (Cippolone may have confirmed this; we don’t know yet.) Trump violated his basic Constitutional duty to take care that the laws be executed. By his actions and inactions he joined in the conspiracies to obstruct the electoral vote certification and commit sedition. For his personal benefit.

    I understand that there is a great desire and natural instinct to tell the big story and, like the January 6 Committee, portray Trump as the master mind behind all this and that it was in the works for weeks if not months. There appears to be an abundance of evidence that this is true. But it’s complex. Complex cases are hard, for many reasons. It seems that at a minimum the simple story – he joined in the conspiracies and supported them during the Capitol seige in real time – ought to be the alternative argued in any such prosecution.

    Maybe it’s me, but I just don’t see this discussed.

    • Rayne says:

      Here’s a simplistic answer:
      Quote by character Omar Little in series The Wire, Season 1, Episode 8, 'Lessons'
      Quote by character Omar Little in series The Wire, Season 1, Episode 8, ‘Lessons’: “You come at the king, you best not miss.” It’s a variant of a quote by Ralph Waldo Emerson, “When you strike at a king, you must kill him.” The country has not indicted and prosecuted a former president for criminal acts conducted as president. This requires thoroughness of the justice system. Further, Trump is more or less a mafioso, a don; if he is not effectively prosecuted resulting in a conviction, he will retaliate.

      He’s also set an example for more than one authoritarian who wished to retain power. Failing to do a thorough job of investigation and prosecution by choosing the “simple story” only encourages them to try again.

      The real solution and simplest story would have been to avoid electing a lifelong scofflaw like Trump altogether, but time machines are thin on the ground and too many people were sold on his own brand of simple story.

      • Amicus says:

        So, a few responses.

        First, what I am most interested in is whether what I laid out is a cognizable theory of prosecution. I understand that you are not responding to that but I seem to remember this being raised by pundits immediately following January 6 and then disappearing from discussion. Why?

        Second, you assume that the “big conspiracy” case has the greatest chance of success. That’s hard to assess from where we sit. But I am confident that the more complex the prosecution/plaintiff’s case, the greater the chance that something will go wrong and it will fail.

        Third, let’s drop the Trump as king talk. One of the most remarkable things about his time in office is how his subordinates easily thwarted his actions and how he stood down to opposition. The threat of mass resignations stopped him from putting Clark in as acting AG. He wasn’t king then, he didn’t much act the part when pressed, and he isn’t king now.

        • Rayne says:

          “Why?”

          You’re asking me and this site to explain why the entire system from justice to Congress to media hasn’t pursued your pet theory? Pffft. Go ask Charles Pierce for starters.

          “you assume that the “big conspiracy” case has the greatest chance of success”

          I assume nothing of the sort. I don’t have a clue what this case will look like when prosecutors bring it into court. The case might well end up being the simple one, but bolstered by all the additional material showing the simple case lets Trump off a lot more charges.

          “let’s drop the Trump as king talk”

          First, you fail to grasp the “king” is a metaphor, not a title, just as Omar Little was not the king of Baltimore. Second, Trump most certainly is a “king” or perhaps I should use a different metaphor, “kingmaker,” which the GOP has proven repeatedly since 2016 by kissing his ass in obeisance. A handful of resignations in DOJ is piffle compared to Christopher Miller steadfastly refusing to fulfill his constitutional duty, or Emily Murphy, or Mark Meadows, or Stephen Miller, or the entire cabinet, or…by now you should get my drift that he appointed people who refused to stop him when they didn’t actively enable him.

          Not to mention all the other members of the manifold layers of conspiracy to obstruct the transfer of power.

        • John Paul Jones says:

          As Rayne says, King = metaphor, but history shows us that aristocracies breed large numbers of what we can call situational narcissists, people who believe they have the right to whatever they want because their position in the social hierarchy gives them access to levers of power. Trump is definitely a narcissist, but I have come to doubt he was originally a psychological one, that is, he was always able to get his way by spreading money around, exactly as a king distributes gifts to his followers to get things done for him. Maybe that has ultimately bred a genuine pathology in him, maybe not; probably impossible to tell.

          So Trump is a “king” because he acts like one; and he still has significant access to various forms of power including the possibility of re-election; meaning he will retaliate if he is able. As an article in The Atlantic several years ago said, “the cruelty is the point.”

          And kings and mafia dons are fundamentally the same sorts of people, in terms of roles. We have different names for them, but they’re all dictators. Kings just have better (historical) press, EVEN THOUGH a lot of history consists of chronicles of narcissists and sociopaths fucking people over.

          So yeah, Trump is a sort of king, not least in his own estimation, and his own demonstrated concept of what it meant to be President.

          And incidentally, this is why I never watched the Sopranos. Are sociopaths really that interesting? Not for me.

        • c-i-v-i-l says:

          I believe that Trump is a malignant narcissist. One of many discussions of this: https://www.usatoday.com/story/opinion/2017/05/04/trump-malignant-narcissistic-disorder-psychiatry-column/101243584/, also see some of the chapters in the book “The Dangerous Case of Donald Trump: 27 Psychiatrists and Mental Health Experts Assess a President.” That diagnosis is consistent with Adam Serwer’s argument in “The Cruelty Is the Point,” as malignant narcissists are sadists.

        • e.a.foster says:

          Not only would “the king” retaliate, but a failure to convict would encourage others to follow “the king’s” example. Sometimes it is better to not move forward with something than to loose. For judges its sometimes “easier/better” to rule on something else to allow something, than to deal with the real issue because no one wants to be the first one or no one knows what is the correct way to rule.

          Having read a lot of this and other postings, it is like there is the main event and then all the other “little” events holding it up, which need to be dealt with. Pull the wrong layer out and the “cake” collapses”.

          This is most likely going to be a very long event. Its better to take it slow and achieve “guilty” or something like it than to race to the finish and not do a decent job of things.

        • Ginevra diBenci says:

          Interesting that militia guys referred to Trump as “the Don” in planning messages for Jan 6. To your point, JPJ, I’m sure Trump would enjoy that.

        • Just Some Guy says:

          PielsDamnGood was paraphrasing Stringer Bell from “The Wire,” in the sense that if Trump’s flunkies weren’t so inept, we’d be in even worse shape than we are now. And for that I too am grateful.

    • Silly but True says:

      “By his actions and inactions…”

      Federal prosecution of a federal criminal statute generally requires an overt criminal action.

      Inaction can still be bad, but typically handled by administrative processes in most institutions. In the institution of the POTUS, inaction can certainly be prosecuted via impeachment.

      The US Code does have a limited number of statutes which include criminal negligence, but they are very much issue-specific pertaining to very specific context. For example 19 USC 1592, “Penalties for Fraud, Gross Negligence, and Negligence” which could not be used here.

      There is no general federal “criminal negligence” catch-all statute which might stretch to include someone’s ideas of wrongful inactions.

  7. Savage Librarian says:

    Marcy, thanks so much for such a thorough and detailed explanation of what to expect in the months ahead.

    Here are some arguments that seem to me just as valid as any Nichols made
    about 1512(c)(2).

    1. It does not reference or rely on any documents because the final word “or” under 1512(c)(1) actually adheres to 1512(c)(2), NOT to itself.

    2. Even if it did require documents, there are ascertainments of certification.

    3. And, in addition to that, there are the documents that memorialize that the final vote count occurred. NARA has documents in many formats, including audio and video. So, the final recording of the vote is documented by a variety of means. These documents are above and beyond the certifications. And this final documentation was delayed because mobsters obstructed the process.

    4. Relative to any personal gain associated with the concept “corruptly,” I would contend that the intangible gain of winning is a personal gain to many, independent of financial reward or positional gain. The status of winning is reward in itself. Just look at Little League or neighborhood sports. Just like Trump, the MAGAs promote the Big Lie because they cannot accept that they didn’t win. It’s the win. The win is what they wanted. The win was the personal gain.

    • Just Some Guy says:

      To your fourth point, to my understanding it seems rather counterintuitive that the courts focus on “corrupt purpose” seemingly as solely financial when, in politics and in other arenas of life, there are clearly other gains to be had. To use an example, Mitch McConnell’s blocking of Merrick Garland’s nomination to the Supreme Court wasn’t done for any discernible or obvious financial gain, but it stands to reason that most observers — except for the courts — would see that as a corrupt act standing to benefit McConnell and the political party that he represents. So it’s not surprising to me that Trump had flunkies like Eastman and Clark who may not be able to be tied to a direct financial benefit from Trump illegally staying in power (though I don’t doubt that there would be some gains for them, after the fact), but clearly would benefit from their political party and the President who represented it usurping the rule of law.

  8. Teri Kanefield says:

    To clear up confusion, especially about the documents: the defense argument on appeal is that the 1512(c) doesn’t apply in a case like the attack on the Capitol.

    They point out that the law was enacted in 2002 after Enron’s accounting firm, Arthur Andersen, launched what prosecutors called a “wholesale destruction” of documents. Later, accountants 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.

    1512(c) was intended to close that loophole. If there is an “official proceeding” underway that you know about, you can’t shred the docs.
    The statute was added to 1512, which was previously a witness tampering statute, so (c) seems a bit out of place.

    So defense lawyers (who will argue anything they can) argued that “obstructing an official proceeding” doesn’t apply to something like the counting of votes in Congress. It applies to shredding or destroying documents.

    The issue on appeal is how narrowly (or broadly) to read the language in 1512(c).

    Roger Parloff, writing for Lawfare, believes it is unlikely the defense will succeed, but they may win some ground. As a defense appellate lawyer, I agree.
    But the issue is on appeal, so the outcome remains uncertain.https://www.lawfareblog.com/crucial-appeal-capitol-riot-prosecutions-dc-circuit-hear-arguments-challenging-felony-charge-used

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