Obstruction of Justice and the Capitol Riot - Part 2

The obstruction charge for January 6 is alive and well

Prosecutors have charged more than three hundred January 6, 2021 Capitol rioters with obstruction of a Congressional proceeding. Members of the Oath Keepers were convicted of this crime at trial. It’s one of the charges in the case against the Proud Boys, where at this writing the jury is currently deliberating. Obstruction also was included as a potential charge against former president Trump and his inner circle of advisors in the Congressional January 6 Committee’s criminal referral to the Justice Department.

Defendants in January 6 cases have challenged the obstruction charge on various grounds. In a post in September 2021, “Obstruction of Justice and the Capitol Riot,” I discussed those challenges and argued that the statute properly applies.

Last month, in its first opinion addressing this issue, the U.S. Court of Appeals for the D.C. Circuit upheld the obstruction charge for January 6 prosecutions. Another appeal, raising different challenges to the law, will be argued next week. These developments, along with the possibility that special counsel Jack Smith could soon consider bringing the charge against Trump himself, make this a good time for an update.

Bottom line up front: the obstruction charge is alive and well when it comes to January 6 prosecutions, including for any potential case against Trump himself.

The Statute

The obstruction statute in question, 18 U.S.C. § 1512(c)(2), provides:

c) Whoever corruptly —

(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or

(2) 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.

Prosecutors have charged that rioters who breached police barricades, assaulted law enforcement officers, broke doors and windows, and entered the Capitol to “stop the steal” of the election corruptly obstructed and impeded the official certification of the electoral college votes by the joint session of Congress.

The Challenges to the Charge

Some January 6 defendants have claimed that the joint session of Congress to certify the electoral college count is not an “official proceeding” under the statute. They argue that official proceedings must involve adjudication or fact-finding, similar to a trial, while the certification of the election results is largely ceremonial. This argument doesn’t find much support in the text of the statute and has not been successful in any January 6 case so far. (My earlier post discusses this argument in more detail.)

The primary challenges to the obstruction law are that it is unconstitutionally vague and overbroad. Defendants argue the statute could potentially criminalize conduct such as lobbying or peaceful protesting, which are also efforts to influence a proceeding. To avoid this danger, they argue, the statute must be thrown out entirely, or at least be narrowed to apply only to acts that directly affect the availability or integrity of evidence.

A sub-issue in these cases is the proper definition of the term “corruptly” in the statute.

More than a dozen federal district court judges in D.C., appointed by both Republican and Democratic presidents, have ruled that the statute properly applies to the Capitol rioters. One Trump-appointed judge, Carl Nichols, disagreed. Judge Nichols ruled the statute is ambiguous. Employing various tools of statutory interpretation, he concluded subsection (2) is limited by subsection (1) and thus also requires that a defendant took some obstructive action with respect to a document, record, or other object. Because there was no evidence that the defendants had impaired any such evidence relevant to the electoral count proceeding, Judge Nichols dismissed the obstruction charges.

The government appealed Judge Nichols’ ruling. That led to the first D.C. Circuit decision on the issue, United States v.Fischer, on April 7, 2023.

The Fischer Decision

Fischer was a consolidated appeal involving three rioters: Joseph Fischer, Edward Lang, and Garret Miller. All three were charged with taking part in the riot, storming the Capitol building, and assaulting law enforcement officers. Judge Nichols had dismissed the obstruction charge against all three defendants. The Court of Appeals reversed that dismissal by a 2-1 vote.

Writing for the majority, Judge Pan concluded the statute is not ambiguous. Subsection (c)(1) applies to tampering with a record, document, or other object to impair its availability in a proceeding, and subsection (c)(2) applies to corrupt conduct that obstructs a proceeding other than that conduct already proscribed by (c)(1). That is the most natural reading of the term “otherwise,” which generally means “in a different manner.” Judge Pan went through the various tools of statutory interpretation used by Judge Nichols and demonstrated why they did not support his interpretation. Accordingly, she held, the statute applies to the defendants’ conduct, which obstructed the proceeding by preventing it from taking place.

The defendants had also made the “official proceeding” argument I mentioned above. Judge Nichols had rejected that argument, and Judge Pan wrote that the Court of Appeals agreed. Under the most natural reading of the statute, the joint session of Congress to certify the election qualifies as an “official proceeding.”

As for the definition of “corruptly,” Judge Pan noted that Judge Nichols had not analyzed it or dismissed the cases on that basis so the question was not squarely before the Court of Appeals. She argued that a decision on the definition should await a case where the question is squarely presented, but noted that storming the Capitol and assaulting law enforcement officers would qualify as corrupt under almost any understanding of that term.

Writing separately, Judge Walker also rejected Judge Nichols’ narrow interpretation of the statute and agreed the dismissals should be reversed. He disagreed with Judge Pan, however, on whether the court should decide the definition of “corruptly.” Judge Walker believed it was impossible to decide the appeal without taking a position on the proper definition of that term. He concluded that to prove a defendant acted “corruptly” under 1512(c) the government must prove that he acted “with an intent to procure an unlawful benefit either for himself or for some other person,” a standard adopted from a Supreme Court case involving tax crimes. He argued the government should have to meet this “unlawful benefit” standard at trial.

Judge Katsas dissented. He agreed with the defendants that 1512(c) should be limited to obstructive acts that impair the integrity or availability of evidence in a proceeding. Only this limiting interpretation, he argued, could prevent the statute from potentially sweeping up lawful conduct such as lobbying and political protests. Because their indictments did not allege that the defendants’ actions affected any physical or other evidence relevant to the Electoral College certification, he argued, the obstruction charge should be dismissed. Judge Katsas did not take a position on the definition of “corruptly,” but did note that Judge Walker’s test might be a poor fit because it previously had been used only in tax cases.

The Robertson Case

Fischer did not resolve the definition of “corruptly” because that question was not squarely presented. That question is, however, teed up in another D.C. Circuit case that will be argued on May 11, United States v. Robertson.

Thomas Robertson, a sergeant in the Rocky Mountain, Virginia police department, took part in the Capitol riot while wearing a gas mask and armed with a large wooden stick that he used to assault law enforcement officers. He was convicted of multiple charges, including obstructing the Congressional proceeding under 1512(c)(2), and was sentenced to 87 months in prison.

On the obstruction charge, the trial judge instructed the jury as follows:

To act corruptly the defendant must use unlawful means, or act with an unlawful purpose, or both. The defendant must also act with consciousness of wrongdoing. Consciousness of wrongdoing means with an understanding or awareness that what the person is doing is wrong.

On appeal, Robertson is arguing that “corruptly” requires the government to prove that the defendant acted knowingly and dishonestly with the intent to obtain a financial benefit or other gain for himself or another – essentially Judge Walker’s argument in Fischer.

The government is defending the trial judge’s instruction on “corruptly” as an accurate statement of the law. It notes that the standard urged by Robertson has been limited to tax cases, where the law generally requires a higher level of intent due to the tax code’s complexity. Proof that the defendant sought some improper benefit may be one way to show corrupt intent, the government argues, but it is not a requirement in an obstruction case.

The Robertson case will be argued on May 11 before Judges Pan (who wrote the lead opinion in Fischer), Pillard, and Henderson.

The Role of Corrupt Intent

There is no definitive Supreme Court ruling on the proper definition of “corruptly” in section 1512. The Court has noted that the term typically connotes some consciousness of wrongdoing, and conduct that is “wrongful, immoral, depraved, or evil.” The term “corruptly,” like the term “willfully,” appears in many criminal statutes, and its precise meaning may vary depending on the context.

Corrupt intent distinguishes obstruction from what may be otherwise lawful conduct. For example, if I shred my files because I’m cleaning out my office, that’s perfectly lawful. If I shred those same files because they were subpoenaed by a grand jury and I don’t want to turn them over, that same act becomes obstruction of justice because now I am acting with corrupt intent.

Or consider the crime of bribery. Suppose I give a large amount of cash to a politician. That act is not inherently illegal – maybe I’m repaying a personal loan or purchasing his baseball season tickets. It only becomes the crime of bribery if we add the element of corrupt intent: that I gave the money as part of a corrupt quid pro quo to influence the politician in the performance of some official act.

Lobbying or protesting may be attempts to influence a Congressional proceeding. Aggressive courtroom advocacy by an attorney is an attempt to influence a judicial proceeding. But these are not obstruction of justice because they are not done with corrupt intent: knowledge that the conduct is wrongful and that it involves unlawful means or an unlawful purpose. Only when you add the element of corrupt intent do such activities potentially become obstruction of justice.

Concerns about Overbreadth

The main concern raised about the obstruction statute is that the government could use it to prosecute political opponents or protected First Amendment activities. These concerns were summarized in a recent column in the Washington Post by Jason Willick. Here is a link to a free version of the article; feel free to go read it and then come back so I can explain why he’s wrong.

Willick claims that in the January 6 cases DOJ is invoking a “novel and sweeping interpretation of the obstruction law” that would result in “a significant expansion of the federal government’s power to punish political activity it opposes.” It could result, he claims, in the “exercise of raw power and retribution unconstrained by law.”

The problem, he says, is that the statute prohibits any effort to influence or impede an official proceeding, so long as that act is done with corrupt intent. There is no requirement of violence. This could potentially apply to many legitimate efforts to influence the government, such as lobbying or peaceful protests.

This, he argues, gives prosecutors a powerful new tool they could use to prosecute political protester or others who “fall out of favor with the president’s Justice Department.” To prevent this potential abuse, Willick favors the standard advocated by Judge Katsas in Fischer: limit the statute to acts that involve the impairment of evidence.

But Willick misunderstands the law of obstruction of justice. As we’ve already discussed, obstruction routinely punishes otherwise lawful acts when they are done with corrupt intent to obstruct. There is nothing “novel” about that.

Deciding whether they can prove corrupt intent in a particular case is the kind of decision prosecutors make every day. That’s the nature of prosecutorial discretion. That’s why, of the more than a thousand rioters charged so far, more than two-thirds have not been charged with obstruction, despite the overall violence and disruption of January 6. Prosecutors are looking at the facts of each case and deciding when the charge is appropriate and can be proven. That’s their job.

The notion that prosecutors are invoking a dangerous new tool that they lacked before is incorrect. Section 1512(c) has been on the books for more than twenty years and we haven’t seen any widespread prosecutions of political opponents. Another law, 18 USC 1505, also makes it a crime to corruptly influence a Congressional committee investigation. It too does not require force or violence. It has been on the books since 1948, again without any widespread abuses.

In addition, given the breadth of the criminal code, corrupt prosecutors who wanted to target political opponents could readily find some crime to use, whether obstruction or something else. If prosecutors want to use criminal charges to punish legitimate political activity, they’ve had the tools for decades. They’re not going to suddenly be stopped short by a ruling that narrows the scope of 1512(c).

The reality is that the Justice Department, under both political parties, historically has been very careful to protect First Amendment activity and avoid bringing obstruction charges in cases involving even disruptive protests. And of course prosecutors do not operate in a vacuum. If DOJ were to start abusing its power and prosecuting legitimate political activities, judges and juries can serve as a check. If necessary, Congress can step in to amend the law. Prosecutors exercising their discretion are hardly exercising “raw power . . . unconstrained by law,” to use Willick’s melodramatic phrase.

It’s curious to me how some, like Willick, are suddenly discovering these supposed dangers in obstruction law only now, when it is being applied to the violent pro-Trump protestors at the Capitol. These laws have been around for decades, and none of the problems Willick fears have surfaced.

The events of January 6 were unprecedented. It’s not surprising some unprecedented legal charges would result. But although the use of 1512(c) in the Capitol riots may be unprecedented, it is not at all remarkable -- as virtually every judge to consider the question has concluded. The sensible application of that law to the Capitol riot does not create some grave new danger to democracy.

Where We Stand With the Obstruction Law

The bottom line from Fischer is that a D.C. Circuit panel has definitively rejected the argument that 1512(c) is limited to acts that impair the integrity or availability of particular items of evidence. Obstruction can also apply to actions, like the Capitol riot, that prevent a proceeding from taking place at all. That finding will be binding on future panels of the D.C. Circuit, unless and until the full court agrees to hear the question en banc.  

The same is true regarding the argument that the joint session of Congress was not an “official proceeding.” That argument is now foreclosed by Fischer unless the full court takes it up and rules the other way.

The proper definition of “corruptly” remains an open issue and hopefully will be resolved by Robertson. But at this point it’s almost an academic question. No court has ever held that “corruptly” in 1512 is unconstitutionally vague in all circumstances, and the D.C. Circuit is not likely to be the first. And even all the judges in Fischer agreed that, whatever your precise definition of corrupt conduct, storming the Capitol and assaulting law enforcement officers in an effort to stop the vote certification is going to qualify.

Even if the court were to adopt the narrower “obtain a benefit” definition proposed by Robertson, that won’t have much impact on future prosecutions. As both judges Walker and Pan noted in Fischer, this standard likely could be satisfied by evidence that the rioters sought to obtain an improper benefit for Trump: overturning the election and keeping him in power.

This standard also would not prevent special counsel Jack Smith from charging Trump and others who did not directly participate in the riot. The charge would be that through various corrupt means (fake electors, pressuring state officials, corrupting the Department of Justice, inciting the riot) Trump and others knowingly used unlawful methods to obstruct the vote certification and thereby obtain an improper benefit for Trump.

Depending on what the court of appeals does, some defendants like Robertson who went to trial might get their convictions reversed by arguing the jury was not properly instructed. But it doesn’t appear the obstruction charge will be completely barred from January 6 prosecutions. If necessary, prosecutors will simply adjust in future cases to accommodate the court’s definition of corruptly – including in any potential case against Trump himself.