Enforcing the January 6 Committee’s Subpoenas

The House Select Committee investigating the January 6 attack on the Capitol is seeking to compel the testimony of Trump administration officials. Former White House chief of staff Mark Meadows and Pentagon official Kash Patel have been subpoenaed and are reportedly “engaging” with the committee. Jeffrey Clark, a Trump Justice Department official who played a key role in internal discussions about potential attempts to overturn the election results, was recently subpoenaed as well. Former Trump advisor Steve Bannon refused to comply with the committee’s subpoena, citing a demand from Trump that he resist on the grounds of executive privilege. In response, the committee is moving to refer Bannon to the Justice Department for prosecution for Contempt of Congress.

Congress has three main tools for enforcing its subpoenas: criminal contempt, inherent contempt, and civil litigation. Each has its strengths and weaknesses. As we saw during the previous administration, subpoenaed witnesses can easily run out the clock with protracted court battles. For example, when the House subpoenaed former White House Counsel Don McGahn in 2019 to testify about Trump’s attempts to interfere with the Mueller investigation, court battles over that subpoena lasted for two years — pushing McGahn’s eventual testimony into 2021 and past the presidential election.

With the January 6 Committee, there’s a real concern that witnesses may be able to delay any testimony until after the 2022 midterm elections. And if the Republicans take back the House in those elections, they will probably drop the investigation so the testimony never happens at all.

If the Select Committee wants to get to the bottom of what happened on January 6 before it runs out of time, it needs to be much more aggressive about responding to stonewalling from Trump and his former aides. The criminal referral of Bannon is a good step – but it’s only a start. Congress needs to be moving forward on multiple fronts to enforce its subpoenas.

Coercion vs. Punishment

If a witness defies a Congressional subpoena, different remedies pursued by Congress will have different consequences. Sometimes contempt is about coercion and sometimes it’s about punishment.

Civil contempt is about coercion. If I refuse a court order to testify, for example, the judge can find me in contempt. She may put me in jail, or impose a daily fine. The purpose is to coerce my compliance with the court’s order. Lawyers often say of this kind of contempt that the witness holds the keys to his own jail cell. I can purge myself of the contempt (and gain my freedom or stop the fines) by agreeing to testify. Civil contempt is not a criminal conviction, and once the witness complies (or the contempt otherwise lapses because, for example, the relevant proceeding ends) there are no further consequences.

A prosecution for criminal contempt, by contrast, is primarily about punishment. If convicted I may be fined and/or sent to prison. I will have a criminal conviction on my record, with all the collateral consequences that entails. But the prosecution itself does not compel me to comply with the original subpoena. It may take place even long after the relevant proceeding has ended and my compliance is no longer possible. And if I were convicted and then decided to comply with the original subpoena, my conviction would still stand – I cannot purge myself of the criminal contempt.

Of course, the threat of a criminal prosecution might coerce a reluctant witness into compliance. And seeing others prosecuted might persuade witnesses that they should comply. But coercing compliance is not a part of the criminal remedy itself.

Steve Bannon
Steve Bannon

Bannon and Criminal Contempt of Congress

That brings us to Steve Bannon. As of this writing, the House is planning to pass a resolution referring Bannon for prosecution for criminal contempt of Congress. The contempt of Congress statute, 2 U.S.C. § 192, provides in part:

Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House . . . willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $1,000 nor less than $100 and imprisonment in a common jail for not less than one month nor more than twelve months.

A companion statute, 2 U.S.C. § 194, provides that if the full House finds a witness in contempt, the matter will be referred to the U.S. Attorney for the District of Columbia, “whose duty it shall be to bring the matter before the grand jury for its action.”

As I discussed in this post, this statute has proven to be relatively ineffective. In most cases, attempts to apply it have involved the House referring a contempt citation of an administration official to the U.S. Attorney’s Office that is part of that same administration. Those U.S. Attorneys have been reluctant to prosecute, particularly if the administration is claiming that resistance to the subpoena is justified by executive privilege. Administrations of both parties have taken the position that, despite the “duty” language, the Department of Justice still has discretion over whether to prosecute.

Recent examples of administration officials referred for contempt include IRS official Lois Lerner and attorney general Eric Holder during the Obama administration, and attorney general Bill Barr and commerce secretary Wilbur Ross during the Trump administration. None of these cases resulted in a prosecution by the U.S. Attorney who was part of the same administration. During the Reagan administration, EPA administrator Anne Gorsuch (mother of the current Supreme Court justice – small world) was referred for contempt by the Democratic House to the Reagan-appointed U.S. Attorney, who also declined to prosecute.

A Strong Candidate for Criminal Contempt

Bannon’s case is different. He obviously is not a member of the Biden administration, so the Department of Justice would not face that conflict. Although Trump has claimed that some records sought by the January 6 committee are covered by executive privilege, the Biden administration has declined to assert that privilege. Even if there were potential privilege claims in connection with some former Trump officials, Bannon was not a member of the Trump administration after 2017. There is no colorable claim of executive privilege at all when it comes to Bannon and the events of January 6. And finally, although claiming privilege might allow you to decline to answer certain questions, it doesn’t excuse failing to show up to the hearing at all, as Bannon did.

The Bannon case thus is teed up better than any case in recent memory for an effective use of the criminal Contempt of Congress statute. There appears to be no good reason why the U.S. Attorney’s office would not proceed. And the case would be relatively simple to indict – you could probably do the grand jury presentation in an afternoon.

But recall that, as discussed above, the prosecution would not result in compelling Bannon to appear before the committee and testify or produce documents. It would merely punish him for his defiance of the subpoena. So although punishing Bannon might be completely appropriate, it does not serve the committee’s ultimate goal of determining what happened on January 6.

In addition, the penalties for Contempt of Congress are not very hefty – a maximum one year in jail and $1,000 fine. Bannon might decide it’s worth it to risk a few months in jail in order to be hailed as a martyr in Trump world.

The bottom line is that although Bannon’s prosecution seems entirely appropriate, Congress needs to pursue other remedies as well if it wants to get his testimony.

Congress’s Inherent Contempt Power

Since the early 1800s the Supreme Court has recognized that Congress has an inherent contempt power, similar to that of a court, to punish those who defy its orders. Using this power Congress can fine a witness, or order the witness detained, until the witness complies with a subpoena. As with civil contempt of court, the purpose is compulsion, not punishment – the witness could purge himself of the contempt by agreeing to comply with the subpoena.

In theory, then, when faced with a witness like Bannon who defies a subpoena, Congress could find him in contempt, impose fines, or even send the House Sergeant at Arms to take him into custody. In the current polarized political environment it may not be a good idea to start down the road of Congress unilaterally locking up political opponents for contempt. But it could impose escalating fines until the contemnor agrees to comply.

Congress’s inherent contempt power has long been dormant; the last time it was used was in the 1930s during the Hoover administration. This is probably because the process has been deemed too cumbersome and unwieldy, requiring Congress to get involved in what are essentially trial proceedings. But the option remains, if Congress chooses to revive it.

There currently is no procedural framework in place for Congress to pursue a contempt resolution. But this could be fixed quickly in the House by simply amending the House rules to spell out the process. This would not require legislation and therefore would not be subject to a potential Senate filibuster.

Representative Ted Lieu has a proposal to do just that, the “Congressional Inherent Contempt Resolution.” It provides a process for negotiating with witnesses who refuse to comply with a subpoena, holding hearings where the witness could be represented by counsel, preparing reports, having a committee vote on a contempt resolution, and then presenting that resolution to the full House. Under Lieu’s proposal, if the full House approved the contempt resolution the witness could be fined a maximum of $100,000.

The Problems with Inherent Contempt

Although Lieu’s resolution would be useful for putting a process in place, it also highlights the key problem with inherent contempt: it’s slow and cumbersome. If a witness in court is found in contempt, the judge can immediately order the marshal to take the witness into custody or start imposing fines. There is an instant coercive effect.

With inherent contempt in Congress, however, there are going to be resolutions, hearings, committee debates, reports, and multiple votes. Nothing about that process is going to move swiftly. It lacks the immediate coercive effect that makes contempt of court so effective.

The other problem with the inherent contempt of Congress process, at least when it comes to claims of executive privilege, is that it relies on Congress itself to decide the merits of those claims. But Congress is an interested party in the legal fights with the executive branch over the privilege. No one gets to be the judge and jury in their own case.

All of this means that any attempt by Congress to exercise its inherent contempt power will almost certainly end up in court. The subpoenaed party will ask a judge to intervene to stay the Congressional proceedings and decide claims of privilege, and will mount legal challenges to any fines or proposed detention.

A key advantage of inherent contempt over a referral for criminal contempt is that Congress is not dependent on the executive branch to decide whether to pursue the case. It puts Congress back in control of its own contempt process. That alone may be reason enough to bring it back.

But even if Congress does resurrect inherent contempt, it seems inevitable that any attempts to use that power ultimately will be resolved in the courts, not on the floor of Congress. And if you are going to end up in court anyway, it would save a lot of time just to go there in the first place.

Civil Litigation to Enforce the Subpoena

The third way for Congress to enforce a subpoena is to file a civil lawsuit seeking to compel compliance. For example, when Trump White House counsel Don McGahn refused to testify before Congress based on Trump’s claim of “absolute immunity” from testimony for his officials, Congress filed a lawsuit asking the courts to rule there was no such immunity and ordering McGahn to testify.

If a civil lawsuit to enforce a subpoena is successful, then compulsion of the witness comes back into play. A court may order the witness to comply with the subpoena. If the witness continues to refuse, then contempt of court – rather than contempt of Congress – is an option. The court could order the witness detained to coerce compliance, or could impose daily fines until the witness obeys the court’s order.

The biggest drawback to this approach, as evidenced by the McGahn case, is delay. Court proceedings and appeals can easily stretch over a year or more. It’s relatively easy for a witness to stall until after the Congress that issued the subpoena has expired. In this case, if the House changes hands in 2022, that could result in the entire dispute simply going away.

The best way to enable Congress to enforce its subpoenas would be to create a fast-track process for such lawsuits to proceed through the courts. Congress could enact legislation to require the courts to establish procedures for expedited handling of fights over Congressional subpoenas. Proposed legislation pending in Congress called “The Protecting our Democracy Act” includes establishing such a fast-track process. Of course, passing that bill would require action by both the House and the Senate – including overcoming any Senate filibuster. But who knows, maybe enough Republicans could be convinced to support such legislation, if they are thinking forward to when they will control Congress again.

Legislation is not necessarily required. Courts can fast-track these cases on their own, if they have the will. The judges set the schedule. During the Watergate era we went from a subpoena for Nixon’s Oval Office tapes to a Supreme Court decision upholding that subpoena in the space of only a few months. But recent history indicates that doesn’t usually happen. In the absence of legislation requiring a fast-track process, it’s all up to the judges. The judiciary could play a positive role here, but of course there’s no guarantee that it will.

Lt. Col. Oliver North

Fifth Amendment Issues

Even if a court ruled that Bannon (or another witness) could not rely on executive privilege, he still might end up not testifying. Given the likelihood that crimes were committed in connection with organizing the January 6 riot, Bannon and others might invoke the Fifth Amendment privilege against self-incrimination.

Congress does have the power to immunize witnesses and compel them to testify. It would probably be reluctant to do so, in order to avoid an Oliver North situation. In 1987, over the objections of independent counsel Lawrence Walsh, Congress immunized North to compel him to testify about the Iran-Contra scandal. That resulted in his later criminal convictions being reversed when the D.C. Circuit ruled that prosecutors could not prove his immunized testimony did not influence his trial. Congress was left with egg on its face, having torpedoed the prosecution of one of the main Iran-Contra bad actors.

Congress would need to tread very carefully here. It could consult with the Department of Justice to see whether there was any reasonable likelihood of a criminal prosecution. If DOJ had no objection, then immunizing witnesses might be appropriate. But absent consent from DOJ, Congress will likely — and rightly — avoid any grants of immunity.

Conclusion

The best approach for Congress to follow would be to pursue both fast-track civil litigation to enforce its subpoenas and referrals for criminal contempt where appropriate. The criminal proceedings can serve to punish those who defy a subpoena and to deter others from doing so, while the civil litigation seeks to compel compliance. In the (likely) absence of fast-track legislation, attorneys for the House need to impress upon judges the need for speed. Members of Congress, the public and the press also could join in calls for expedited review. It’s not a great solution, but for now it is the least-bad option.

There is an overwhelming national interest in determining exactly what led to the January 6 riot so that similar threats to our democracy can be avoided in the future. Maybe enough judges can be persuaded that they need to move quickly.

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Obstruction of Justice and the Capitol Riot

More than 600 individuals have been criminally charged for taking part in the assault on the U.S. Capitol on January 6, 2021. Of those, more than 200 have been charged with felony obstruction of justice for interfering with Congress’s certification of the presidential election results. A number of the defendants have raised legal challenges to this charge, and at recent hearings federal judges have expressed some concerns.

The January 6 defendants argue that the obstruction law has never been used in a case like this. That’s true, because there’s never been another case like this – not since the War of 1812, anyway. But that doesn’t mean a statute specifically written to prohibit impeding the work of Congress does not apply to the Capitol riot. Although the unprecedented events of January 6 raise some novel issues, the obstruction of justice charge comfortably fits those events and should be upheld.

Obstruction of Justice and the Capitol Riot

The government charged many Capitol rioters with obstruction under 18 U.S.C. 1512(c), which 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.

In particular, many of those who stormed the Capitol to “stop the steal” are charged under subsection (c)(2) with corruptly obstructing or impeding the official Congressional proceeding to certify the presidential election results.

A number of defendants — including several of those charged in the Oath Keepers conspiracy case, the largest conspiracy case arising from the riot —  have raised various challenges to the 1512(c) charge. They argue the statute should be interpreted narrowly to apply only to conduct akin to shredding documents or otherwise destroying evidence. They claim that the joint Congressional session to certify the election results was not an “official proceeding” within the meaning of the statute. And they argue the statute is unconstitutionally vague because it fails to indicate clearly what kind of actions will justify such felony charges, when others who took part in this riot or in other Capitol protests are charged only with misdemeanors or are not prosecuted at all.

The Origins of 1512(c)

Title 18, Section 1512 is titled “Tampering with a Witness, Victim, or Informant” and was first passed in 1982. Historically, as the name suggests, 1512 was a witness tampering statute. It applied to those who tried to obstruct a proceeding by influencing some third party. That included conduct such as killing or injuring a witness, using force or threats to persuade someone not to testify, or otherwise corruptly causing another person to conceal information from a proceeding.

Section 1512(c), quoted above, was added to the statute in 2002 as part of the Sarbanes-Oxley reforms enacted in the wake of the Enron scandal. But this new section doesn’t really rest comfortably within 1512. Although the rest of 1512 prohibits a defendant from obstructing a proceeding by doing something to someone else, the new 1512(c) is a broad catch-all prohibition that applies to obstruction carried out by a defendant himself. After the addition of section (c), therefore, 1512 – despite its title – was no longer limited to witness tampering.

Arthur Andersen logo

The Legacy of Arthur Andersen

To understand why Congress added 1512(c), you have to start with the Arthur Andersen case. The accounting giant Andersen was the auditor for Enron, the energy company that collapsed in 2001 in the largest corporate fraud in U.S. history. Andersen was indicted in 2002 for obstruction of justice for shredding millions of pages of documents related to its work for Enron. The shredding went on for weeks as stories about Enron’s troubles appeared in the press, the Securities Exchange Commission made preliminary inquiries, and the stock price plummeted. When the SEC finally opened an official investigation and subpoenaed Andersen for documents, it stopped the shredding.

Title 18 section 1505 is the obstruction of justice statute that directly applies to investigations by agencies like the SEC. But that statute requires that a proceeding was already pending at the time of the obstruction. Prosecuting Andersen under 1505 was not an option because when it was shredding the Enron documents the official SEC proceeding had not yet begun. 

So prosecutors charged Andersen under the old version of 1512, the witness tampering statute. Section 1512 specifically provides that a proceeding does not have to be pending at the time of the alleged obstruction. The government’s theory was that Andersen corruptly persuaded its own employees to destroy evidence relevant to the SEC’s upcoming investigation.

This was a pretty awkward theory because it’s kind of circular: an entity like Andersen can only be prosecuted based on the actions of its agents. But prosecutors were alleging that Andersen was corruptly persuading its own agents to obstruct the proceeding, which then resulted in Andersen being liable for their actions. This convoluted charge became a major issue at Andersen’s trial, with the defense mocking the theory and questioning who exactly was supposed to be the corrupt persuader. It nearly derailed the prosecution. (Andersen was convicted but the Supreme Court later threw out the conviction on other grounds.)

Congress Closes the Andersen Loophole

Arthur Andersen and Enron were very much on Congress’s mind when it passed the Sarbanes-Oxley Act; indeed, that bill was largely motivated by Enron’s collapse. Section 1512(c) was not part of the original bill but was added later as an amendment. The legislative history demonstrates that Senators thought it was a necessary addition to close the “loophole” revealed by the Andersen case. As Senator Trent Lott put it:

Current law prohibits obstruction of justice by a defendant acting alone, but only if a proceeding is pending and a subpoena has been issued for the evidence that has been destroyed or altered….

So this section would allow the Government to charge obstruction against individuals who acted alone, even if the tampering took place prior to the issuance of a grand jury subpoena. I think this is something we need to make clear so we do not have a repeat of what we saw with the Enron matter earlier this year.

This is exactly the problem that was highlighted by the Andersen case, and Congress wanted to remove that problem. One way to do it – probably a better way — would have been to amend section 1505 to remove the pending proceeding requirement.  Instead, Congress added a new prohibition against obstructing justice to 1512, which does not require a pending proceeding. That did solve the Andersen problem: under the new 1512(c) Andersen could have been charged with obstruction itself and not with corruptly persuading its employees to obstruct. But it also ended up sticking a broad, catch-all prohibition on all obstruction of justice into a statute that, up to that point, had been focused only on witness tampering. That’s led to some controversy about the proper scope of 1512(c) – including the issues raised by the defendants in the Capitol riot.

Fishing boat

The Argument For a Narrow Interpretation: Yates v. United States

The defendants argue that 1512(c) should be read narrowly to apply only to obstructive conduct akin to the destruction of evidence — the kind of conduct that motivated passage of Sarbanes-Oxley. This argument doesn’t find much support in the plain text of the statute, which broadly prohibits any attempts to “obstruct, influence, or impede” a proceeding. But the defendants claim that the Supreme Court’s 2015 decision in another obstruction case, Yates v. United States, indicates that 1512(c) does not apply to their actions. The judges considering the defense motions to dismiss reportedly have expressed some interest in the idea that Yates might be relevant here. But that argument is misplaced.

Yates involved a different statute, 18 U.S.C. 1519, also passed as part of the Sarbanes-Oxley reforms. Yates was a fishing captain who was cited for catching undersized grouper in the Gulf of Mexico. He was instructed to preserve the fish as evidence until he returned to port, but instead he destroyed them. He was prosecuted under 1519 which provides:

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.

Yates claimed this statute did not apply to his conduct because a fish was not a “tangible object” with the meaning of this statute. He argued that because 1519 was passed as part of the Sarbanes-Oxley reforms, it was primarily concerned with offenses like document shredding, such as that done by Arthur Andersen. In context, therefore, he said the term “tangible object” should be limited to objects similar to documents and records – objects that contain information. In a 5-4 decision, the Supreme Court agreed and reversed his conviction.

The Capitol riot defendants have argued that 1512(c), like 1519, should be interpreted in light of Congress’s purpose when enacting the Sarbanes-Oxley reforms.  Congress was primarily concerned with corporate misconduct and destruction of evidence. Section 1512(c)(1) clearly refers to that kind of conduct. Accordingly, they argue, the “otherwise” clause of 1512(c)(2) should likewise be narrowed to cover only conduct similar to the destruction of documents and records.

But virtually none of the Court’s reasoning in Yates translates to 1512(c). First, the Court in Yates noted that 1519 was a stand-alone statute that appeared toward the end of the chapter on obstruction of justice, alongside other statutes that more narrowly focus on specific kinds of conduct, not on obstruction generally. The Court also focused on some of the verbs in 1519, such as “covers up, falsifies, or makes a false entry in,” noting that although those verbs applied to tangible objects similar to documents and records, it was not possible to, for example, make a false entry in a fish. As for the nouns – “record, document, or other tangible object,” the Court held that rules of statutory construction dictate that when a general term like “tangible object” appears at the end of a list, it should be interpreted to be similar to the earlier terms in that list. 

None of those arguments work with 1512(c). First, 1512(c) is not a new stand-alone statute dealing with a specific kind of obstruction and appearing at the end of the chapter, it is an amendment to an existing general obstruction statute that applies in all kinds of proceedings. Second, the “otherwise” clause in 1512(c)(2) is in a different section of the statute from (c)(1). A separate section like (c)(2) is not a continuation of a single list of words, so the statutory interpretation tools applied in Yates don’t apply. In fact, the plain meaning of “otherwise” in (c)(2) suggests just the opposite: a different category of obstruction, not simply another variation on what has come before.

The Court in Yates also noted the title of 1519 – “Destruction, alteration, or falsification of records” – supported its holding that “tangible object” should be limited to objects similar to documents and records. The Capitol riot defendants have made a similar argument, noting that the title of 1512, “Tampering with a Witness, Victim, or Informant”, suggests the statute should have a narrower scope. But as noted above, the section in question here was added to 1512 long after it was first passed, and with the expressly stated purpose of expanding the scope of the statute beyond just witness tampering.

I think Yates was wrongly decided, as I argued here. And with the changes in the makeup of the Court, I think a majority today would more likely agree with Justice Kagan’s dissent arguing that the plain language of the statute should govern: a tangible object is simply an object that’s tangible, fish included. But regardless, Yates deals with a very different statute and is of limited use when considering the crime at issue here.

The Breadth of 1512(c)

One of the stronger arguments in favor of the narrower reading advocated by the defense is that without it (c)(2) becomes a sweeping, catch-all obstruction of justice statute that basically subsumes all others.  Crimes that could be charged under other, older obstruction statutes, such as 18 U.S.C. 1503 and 1505, other portions of 1512, and many charges under 1519, all could be charged under 1512(c)(2). The defendants argue that Congress would not make such a sweeping change by amending 1512. A similar argument was adopted by the Court in Yates; it said “tangible object” needed to be narrowly construed or else 1519 would overlap completely with 1512(c).

This argument would have more force if the obstruction of justice statutes were not already such a mess. Even before the Sarbanes-Oxley amendments, the statutes overlapped and duplicated each other considerably. For example, Section 1503 contains specific prohibitions against corruptly interfering with a judge or juror but then contains the so-called “omnibus clause” prohibiting any corrupt endeavor to impair, obstruct or impeded the due administration of justice – which subsumes all the specific prohibitions that come before and renders them unnecessary. Witness tampering under the old version of 1512 could frequently also be charged under 1503 or 1505, so long as the proceeding was already pending.

Congress added 1512(c) as a last-minute amendment. Perhaps it didn’t focus on the full sweep of the amendment or its effect on other statutes. But the plain language of the amendment they passed does operate as a broad, general prohibition on obstruction in all forms and in all types of proceedings. I’ve been telling my students for years that 1512(c)(2) is now pretty much the only obstruction statute a prosecutor needs. The fact that it overlaps with other obstruction statutes is not unusual, and is not a reason to disregard the plain language of the statute.

The Argument Over “Official Proceeding”

A number of the defendants have argued that the joint session of Congress to certify the election results is not an “official proceeding” within the meaning of section 1512. They claim that for purposes of the obstruction of justice statutes, “official proceeding” should be limited to adjudicatory or investigative hearings, where evidence is being heard and facts or rights being determined. Because the certification of the election results is largely a formality, they claim, it should not be considered an “official proceeding” for purposes of 1512.

(Side note: Donovan Crowl, one of the defendants in the Oath Keepers conspiracy case, actually argues that he can’t be charged with obstructing a Congressional proceeding because Congress had recessed by the time he entered the Capitol.  Well, yes – it had recessed because the Capitol was being attacked and the Members had to get to safety!  This argument reminds me of the old story about the kid who murders his parents and then asks the court for mercy because he’s an orphan.)

Title 18 U.S.C. 1515 defines “official proceeding” for purposes of section 1512 as including proceedings before courts and administrative agencies as well as “a proceeding before the Congress.” There is no further definition. As the government points out in its opposition, this plain language cuts against the defendants’ argument. The joint session of Congress to certify the election results is required by both the U.S. Constitution and by federal law. That certainly makes it seem “official.” It also is a “proceeding” as that term is commonly understood: the body in question coming together to do business.

Cases that have considered whether something qualifies as a “proceeding” have usually focused on the degree of formality present. For example, FBI investigations have been held not to be “proceedings” because they are informal and unstructured. “Proceeding” connotes some kind of official function that has a formal environment, a specific purpose, a defined beginning and end, and that takes place according to certain rules. An informal gathering of legislators chatting in the cloakroom or on a factfinding trip would lack this degree of formality and would not be considered an “official proceeding” of Congress. But the required joint session of Congress to certify the election meets the formality requirements.

Even if “official proceeding” were limited to adjudicatory proceedings as the defendants suggest, the joint session of Congress should qualify. As the government notes, the session involves finding facts being in the form of tallying the votes. Formal rules govern the process. Members may speak and object and may be overruled. There is a presiding officer – the Vice President — who controls the proceedings, akin to a judge. The joint session includes many aspects of an adjudicatory, fact-finding proceeding.

Suppose someone threatened a Member of Congress to force her to object to a particular state’s electoral votes, or forged the records of the electors from a state and submitted those false votes as part of the official count. Surely those acts would qualify as obstruction of an official proceeding. Participating in a riot to shut down the entire process should qualify as well.

Usually, in statutory interpretation, if the plain language of the statute is clear that’s the end of the inquiry. And there’s no logical reason Congress would want to protect, say, a routine subcommittee hearing from disruption but not protect the constitutionally-mandated joint session to certify the election.

The Vagueness Argument

The defendants also argue that the obstruction of justice statute, as applied to their conduct, is unconstitutionally vague. The vagueness doctrine applies when it would be unclear to the average person what the law prohibits, or when a statute is so standardless that it invites arbitrary or discriminatory enforcement.

The vagueness argument boils down to this: the defendants had no reason to suspect that participating in a riot where hundreds stormed the Capitol, broke doors and windows, scaled walls, forced their way past barricades, and assaulted scores of police officers — all with the goal of intimidating Congress and stopping it from certifying the election results — might violate a statute that prohibits corruptly interfering with the work of Congress. Merely stating the argument highlights how absurd it is.

The defendants argue that the term “corrupt” in section 1512 renders the statute impermissibly vague. They claim it is unclear what kind of conduct is “corrupt” and thus what will distinguish obstruction of Congress from lesser misdemeanor offenses, such as disorderly conduct in Congress, with which many of the rioters are also charged.

But the requirement of corrupt intent is common in criminal statutes. In white collar crimes, corrupt intent is frequently what distinguishes perfectly legal conduct from criminal activity. For example, if I shred the files in my own office because I’m decluttering, that’s perfectly legal. If I shred those same files with the corrupt intent to destroy them because they’ve been subpoenaed by a grand jury, that same conduct now becomes obstruction of justice.

Corrupt intent is commonly defined as acting with wrongful, immoral, evil, or depraved purpose. Juries are instructed on this all the time, as an element of the offense that they must find beyond a reasonable doubt. As the government pointed out in its opposition, the presence of corrupt intent is what distinguishes the acts of these defendants from legitimate political protests or other legitimate attempts to influence the Congress. It will be the government’s burden to prove that corrupt intent at trial. And the requirement that the government prove wrongful, evil or depraved intent prevents the statute from sweeping too broadly and provides adequate notice to the public concerning the kind of conduct that is prohibited.

Is Obstruction of Congress Different?

The defendants argue that Congress is different, and the statute is therefore more vulnerable to a vagueness argument, because there are many legitimate ways to try to influence Congress, including peaceful protests or lobbying. A statute that criminalizes only corrupt attempts to influence Congress, they argue, fails to provide adequate notice concerning what is allowed and what is not.

But this issue is not unique to Congress. Section 1512 also criminalizes corruptly trying to influence court proceedings. There are people who try to influence court proceedings every day – they’re called lawyers. The efforts of advocates to influence the courts are obviously not criminal. But if an attorney acts with corrupt intent by, for example, deliberately filing false pleadings, tampering with evidence or witnesses, or engaging in other improper behavior, that attorney can be prosecuted.

Part of what is going on here is the attempt to rewrite history and cast the Capitol rioters as simply political protestors. The defendants repeatedly characterize their actions on January 6 as political protest and speech. They claim that if they can be prosecuted for obstruction, others engaged in legitimate First Amendment activities will fear future prosecution as well. But the factual distinctions between legitimate political protest and the unprecedented events of January 6 are clear. They indicate the presence of corrupt intent, which can readily be found by a jury.

As far as I’m aware, no court has ever held that the corrupt intent requirement of section 1512 renders that statute unconstitutionally vague. The Supreme Court discussed the corrupt intent requirement of 1512 in the Arthur Andersen case but never suggested that the requirement rendered the statute vague. And defendants who participated in a violent assault like this one are in a very poor position to argue they had no idea they might be subject to prosecution for disrupting the work of Congress.

“Just Trust Us”

Statutes can also be found impermissibly vague if they are so standardless that they invite discriminatory or arbitrary enforcement. In these cases that argument has taken the following form: with many of the rioters, the government charged them only with misdemeanors, such as disorderly conduct or unlawfully entering a federal building. It’s not clear, the defendants argue, why they are charged with felony obstruction and others are not. And that, they claim, renders the statute vague as applied to them.

During recent hearings challenging the obstruction charge, two federal judges reportedly told prosecutors they were concerned about this issue, noting that prosecutors were essentially saying “trust us,” we will only bring the obstruction charge in cases where the conduct was really bad. This may have just been judicial musing from the bench, because on closer examination the criticism doesn’t make much sense.

We do, in fact, trust prosecutors every day to make decisions about what kind of charges are appropriate, based on the facts of particular cases. That’s a large part of a prosecutor’s job. Suppose a prosecutor has evidence that a contractor handed a politician a bag full of money. We trust the prosecutor to decide what to charge, based on whether she thinks she can prove the payment was part of a corrupt quid pro quo and therefore bribery, or just a thank-you payment for an official act and thus the lesser crime of gratuities, or maybe just a misdemeanor supplementation of salary offense under 18 U.S.C. 209 — or no crime at all. That charging decision involves the prosecutor making a judgment about the facts and what she can prove about the defendant’s intent.

If there is an allegation of insider trading, we trust prosecutors to determine whether they can prove it was a “willful” violation and therefore subject to criminal prosecution, or whether it should just be left to civil enforcement by the SEC. If there is a homicide, we trust the prosecutor to determine whether the appropriate charge is first degree murder, second degree, manslaughter, or something else, based on the level of intent.

The same is true for the Capitol riot cases. The facts of these cases and the roles of individual defendants vary widely. It’s the prosecutors’ job to review the evidence and determine which ones, in their view, demonstrate corrupt intent justifying the obstruction charge. That could be based on violence, the amount of time inside the Capitol or the areas they entered, or on other acts by particular defendants demonstrating the wrongful and evil intent required.

And it’s not true, of course, that this means simply trusting the prosecutors’ judgment on these questions. It ultimately will be the prosecution’s responsibility to prove the element of corrupt intent to the jury, which acts as a check on that decision. And if defendants believe they have evidence that prosecutors are making those choices for an improper reason, such as targeting particular defendants for their political views rather than their actions, they can make an appropriate motion and a judge can decide.

This is not to say that prosecutors always do a perfect job when making these decisions. But there is nothing at all unusual about prosecutors examining the facts and deciding which cases justify a more serious felony charge. And the fact that prosecutors make those charging decisions does not mean statutes are impermissibly vague.

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