19 Minutes: The Tuberville Call and DOJ’s Use of Obstruction in January 6 Prosecutions

Nine minutes after President Trump called Tommy Tuberville at 2:26PM on January 6 to ask him to raise more objections in an effort to delay the vote count, riot defendant Brady Knowlton entered the Capitol in what DOJ alleges was an intentional effort to delay the vote count.

Nineteen minutes after Trump placed that call, at 2:45PM, Knowlton entered the Senate Gallery, maybe fifteen minutes after Tuberville had told the President he had to hang up because the Senators were being evacuated because people like Knowlton were invading the Capitol.

A number of people have pointed me to this article on Tuesday’s hearing before Judge Randolph Moss in Knowlton’s challenge to DOJ’s use of 1512(c)(2) to charge those who, DOJ alleges, came to the insurrection with the intention of delaying or stopping the certification of the votes. Here’s my live thread of the hearing and my own post on it; I’ve linked some of my other posts on the application of obstruction below.

The article is a good summary of the legal questions around the application. But in my opinion, its emphasis does not adequately convey what went on at the hearing. For example, the headline and first three paragraphs emphasize Judge Moss’ concerns about constitutional vagueness, which Moss didn’t focus on until an hour into the hearing.

Lead felony charge against Jan. 6 defendants could be unconstitutionally vague, U.S. judge warns

A federal judge has warned that the lead felony charge leveled by the government against Capitol riot defendants could be unconstitutionally vague, potentially putting convictions at risk of being overturned on appeal.

U.S. District Judge Randolph D. Moss identified the latest hurdle for federal prosecutors investigating January’s attack on Congress during a two-hour hearing this week over whether to dismiss the “obstruction of an official proceeding” charge from a 10-count indictment against two men from Colorado and Utah.

Moss’s remarks highlight the challenge prosecutors have faced in defining the most severe criminal conduct allegedly committed on Jan. 6. Prosecutors have employed the obstruction charge rather than sedition or insurrection counts in accusing at least 235 defendants of corruptly disrupting Congress’s certification of the 2020 electoral-college vote.

It doesn’t mention how Moss started the hearing — by expressing skepticism about Knowlton’s argument — until the last line of the fourth paragraph.

Attorneys for Brady Knowlton and Patrick Montgomery claimed that specific offense did not apply to them, arguing that the joint House and Senate session that met Jan. 6 does not qualify as an official proceeding of Congress. Moss made clear he was not persuaded by that claim at this point. [my emphasis]

At least before Moss, then, this challenge faces an uphill climb (some of the other challenges to this application of obstruction make a slightly different legal argument that may have more promise of success). And while the WaPo piece notes that Moss asked for additional briefing from both sides, it doesn’t note what I consider a fairly major strategic error from Knowlton’s team: choosing to define an “official proceeding” as one in which the ultimate decision of the proceeding is an adjudication that has real import to the life and liberty of those involved.

In effect, Knowlton lawyer Brent Mayr claimed that Joe Biden (and the 81 million Americans who voted for him) would have suffered no harm if Congress had been so intimidated by the people roaming the hallways threatening their assassination that they certified Donald Trump as the victor of the 2020 election instead of Biden, or if the insurrectionists managed to cause lasting unrest that delayed the certification indefinitely, giving Trump a chance to attempt another desperate ploy to remain in power.

By making that argument, Mayr provided DOJ the opportunity to lay out — in the additional briefing Moss ordered — the real adjudication that took place on January 6 and the import to justice and rule of law that the adjudication had, something DOJ has done, albeit in less focused fashion, in other filings in this investigation. Mayr gave DOJ an opportunity to explain that there was a very real risk that the lawfully elected President of the United States would not have his victory officially recognized, which was precisely the goal, DOJ would argue, that Brady Knowlton sought.

Mayr gave DOJ that opportunity even amid heightened coverage of how real the threat of a travesty of justice was.

The reporting on Jeffrey Rosen’s testimony about Jeffrey Bossert Clark’s attempt to force DOJ to endorse Trump’s Big Lie makes it clear how corrupt all this was (showing corrupt intent is key to proving Knowlton or anyone else guilty of the obstruction charge).

Filling in just one more detail will tie together Trump’s efforts to recruit DOJ in telling his Big Lie and Brady Knowlton’s response to that Big Lie of flying to DC, invading the Capitol, and heading to the place where the vote was supposed to be counted.

[B]ody-worn camera footage from the Metropolitan Police Department [] shows Knowlton and [Knowlton’s co-defendant Patrick] Montgomery outside the Capitol at around 2:00 p.m.  In the video, Knowlton confronts officers who are making their way through the crowed and yells at them saying, “You took an oath! You took an oath!” and pointedly asking them, “Are you our brothers?” Montgomery is standing right behind Knowlton. The government also located another body-worn camera video of both defendants after they left the Senate Gallery, confronting officers inside the Capitol in a hallway near Senate Majority Leader Schumer’s office. In the video, both Knowlton and Montgomery direct officers to move out of the way. Knowlton tells the officers, “We don’t wanna push through there. We do not wanna push through there.” Knowlton also tells the officers, “This is happening. Our vote doesn’t matter, so we came here for change.”

That detail is that Donald Trump made an effort to ensure the Senators would still be there when Knowlton and others arrived.

“How’s it going, Tommy?” the president asked.

Taken a little aback, Lee said this isn’t Tommy.

“Well, who is this? Trump asked. “It’s Mike Lee,” the senator replied. “Oh, hi Mike. I called Tommy.”

Lee told the Deseret News he realized Trump was trying to call Sen. Tommy Tuberville, the newly elected Republican from Alabama and former Auburn University football coach. Lee walked his phone over to Tuberville who was talking to some colleagues.

“Hey, Tommy, I hate to interrupt but the president wants to speak with you,” Lee said.

Tuberville and Trump talked for about five to 10 minutes, Lee said, adding that he stood nearby because he didn’t want to lose his cellphone in the commotion. The two were still talking when panicked police ordered the Capitol to be evacuated because people had breached security.

As police were getting anxious for senators to leave, Lee walked over to retrieve his phone.

“I don’t want to interrupt your call with the president, but we’re being evacuated and I need my phone,” he said.

Tuberville said, “OK, Mr. President. I gotta go.”

To be clear: there’s no evidence that Knowlton had direct ties to Trump (though Knowlton is one of just seven defendants thus far from Utah, and a week after the riot, Rudy Giuliani appears to have been in contact with James Sullivan, the brother of defendant John Sullivan, who told Rudy he had gotten his “agent” and three others from Utah out of trouble). There’s even less evidence that, at the moment Knowlton crossed the threshold of the Capitol, he knew Trump had just tried to convince Tuberville to delay long enough for Knowlton to arrive in the Senate.

This is not yet a conspiracy that ties the President’s actions to obstruct the vote count with Brady Knowlton’s alleged actions to achieve the same goal.

But even as Brady Knowlton’s lawyers have argued that an official proceeding is one in which the parties can suffer dire consequences if rulings don’t go in their favor, more evidence is coming out about how Knowlton’s actions fit into a larger, undeniably corrupt scheme to deprive Joe Biden (and Kamala Harris, who was present and participating on that day) of their electoral win.

If that’s the standard, then Knowlton’s lawyers have made a compelling argument against his case.

The WaPo’s not wrong about the seriousness of this larger challenge. And whether or not this argument succeeds, it’s still not clear that DOJ will be able to prove that Knowlton had the requisite corrupt intent to delay the vote.

But Knowlton’s argument may be overtaken by the new evidence proving just how corrupt this effort was.

Posts on obstruction

July 17, 2021: General thoughts on the application of obstruction in advance of the Paul Hodgkins’ sentencing

June 4, 2021: How Ethan Nordean’s challenge to the application of obstruction degrades the challenge

June 14, 2021: How the III Percenter conspiracy indictment might use the threats of violence enhancement from the obstruction statute

July 31, 2021: How DOJ blew an opportunity to explain the difference between the Brett Kavanaugh protests and the January 6 rioters

July 27, 2021: How Donald Trump might be charged with obstruction

August 3, 2021: Brady Knowlton’s lawyer falsely claimed his client’s alleged obstruction posed no harm of injustice

August 4, 2021: Trump’s Big Lie demonstrates the threat of harm from insurrectionists’ obstruction

List of all obstruction challenges


31 replies
  1. Peterr says:

    Marcy, in all the video clips of Jan 6, there were a bunch of folks who trashed the Parliamentarian’s office, and I also have a vague memory of a clip with someone shouting “where are the ballots?” (May have been in the House chamber and not the Parliamentarian’s office.)

    If I’m remembering this correctly, it strikes me that seeking to seize or destroy those ballots (or letters from the states attesting to their electoral votes) falls squarely in the meaning of 1512(c)(2)(B)(ii): “Whoever uses physical force or the threat of physical force against any person, or attempts to do so, with intent to— . . . alter, destroy, mutilate, or conceal an object with intent to impair the integrity or availability of the object for use in an official proceeding;”

    Those ballots/letters from the states were the most important objects on January 6th. The capitol staff knew it, because they grabbed them before the evacuated the chambers, and the insurrectionists knew it because they went to considerable lengths to find them.

    Has the issue of seeking to seize or destroy the ballots/letters from the states themselves come up in this or any other Jan 6 case?

    • emptywheel says:

      It came up briefly in this hearing, yes. It has not explicitly shown up in any arrest affidavits yet.

      • timbo says:

        Are some defendants’ lawyers hoping this won’t come up with regard to specific statements at this point? One could imagine that this sort of direct evidence of forethought by various rioters to take explicitly criminal actions under 1512(c)(2)(B)(ii) might be used to get pleas and testimony to further the investigation, correct?

  2. Rita says:

    I don’t understand how Trump’s phone call to Tuberville would have resulted in the delay of the Senators leaving the Chamber. Maybe I misunderstood.

    There was another Tuberville misdial to Mike Lee later that day from Rudy Giuliani in which Giuliani asked Tuberville to see what he could do to delay the vote because Trump thought he could persuade more state legislators.

    Tuberville was the perfect useful idiot – new to Congress, loyal to Trump, and a football idiot savant.

    No good conspirators let everyone involved know all of the moving parts.

    • ThomasH says:

      I understand Marcy implying that trump asking Tuberville to raise stalling objections with the hope that this would keep the members of Congress in their chambers long enough for the mob to find them there.

      • dadidoc1 says:

        It appears that TFG fully intended for the insurrectionists to find and apprehend key members of Congress and the Vice President. He was frighteningly close to being successful. But by the grace of God.

    • earlofhuntingdon says:

      It’s probably hard to talk with the president when you’re running for your life. Most people would stop and focus on the call. The timing is what’s important, more than which congresscritter the president called – something Trump made self-evident by purportedly calling the wrong guy. It distracts and delays at a critical time, tactics which Trump has mastered.

  3. pdaly says:

    I recall that VP Pence was moved twice on Jan 6, 2021:
    2:13 pm VP Pence removed from Senate chamber to nearby office.

    2:24 pm Trump tweets “Mike Pence didn’t have the courage [to disrupt the vote count and prevent the certification of the Electoral College].”
    2:26 pm Capitol security video shows Secret Service moving VP Pence and family to a NEW secure location.
    2:26 pm Trump calls Mike Lee (R-Utah)’s cell phone and asks to speak to Rep. Tuberville (R-AL).

    The timing of the 2:26 pm Trump call into the Capitol made me think Trump in that moment wanted to keep track of Pence’s movements. The counting of the votes had already been suspended. Had Pence’s Secret Service detail decided to go radio silent?

    The two misdials to Rep. Lee’s phone that day, first by Trump and then by Rudy, and each time looking for Tuberville, is strange. Also strange, with the first call, Rep. Lee dutifully complies, but, given the Capitol was in lockdown and the VP recently whisked away, does Lee ever ask Trump for help getting the rioters out of the Capitol?
    Lee’s reluctance to have his calls involved in the official 1/6/21 timeline is reminiscent of Rep Kevin McCarthy (R-CA)’s reluctance to go on record about his ‘expletive-laden’ phone conversation with Trump 1/6/21 telling Trump to call of the Capitol attack by the Trump supporters.

    [FYI, leaving a link here which provides support for the 2:13 pm removal of Pence by Secret Service – using this in a timeline. Thanks. /~Rayne]

      • P J Evans says:

        Based on everything I’ve heard about the former guy and written records in the last five years – absolutely he didn’t want any records of the planning/set-up for the insurrection.

    • DAT says:

      Worth recalling the claim that at one point Pence refused to get into a secret service car because he feared they were part of TFG’s plot. (He refused to get in the car twice. He gives a different reason in the book “ I alone can fix it.”)

      • pdaly says:

        I noticed that change, too. Haven’t been able to rediscover a link to the story indicating Pence’s suspiciousness of the Secret Service at that moment.

      • timbo says:

        My reading of Pence’s refusal was not that he felt that his Secret Service security detail was in on some plot per se but that his security detail lead didn’t understand precisely how power may work in a Constitutional crisis situation at the nation’s Capitol, of which Pence was currently a central figure. That’s my reading of Pence’s statements about this at least. If it turns out the Secret Service was further compromised to a level beyond what is in the public record currently, and that would be indeed worrisome, given how compromised they already appear to be by Trump’s first term as President, it certainly would be best if the current Congress got down to figuring that out pretty darned quick…

        • Krisy Gosney says:

          I’m rereading some comments and this about Pence stuck out to me this time. My observation is that most of the hard right Christianists have bought in the belief that Trump was anointed by God to lead the country to a kind of hard right Christian rule. So since Pence actively took steps to foil Trump’s coup then he must not believe Trump is God’s anointed. Pence seems to be a true believer but has a front row seat to Trump’s real, behind closed doors self and it seems he concluded Trump is not Jesus’s preferred President despite the hard right Christianist red meat and judges Trump had given them.

  4. yogarhythms says:

    Defense can’t argue client wasn’t there or was so intoxicated didn’t appreciate surroundings or was forced to be there by others. Wait did others force Knowlton? Knowlton went to Jan 6 Insurrection to revolt and change history. Nov 3 2020 election results weren’t in agreement with Knowlton’s doors of perception so he put his body over the line and violently stormed the US capitol to hang officials that disagreed with his revolutionary ideas of who won Nov 3 2020 election. Defense attacks the law 18 USC 1512 c 2, 2002 revision of obstruction arguing Knowlton’s video and written evidence of criminal behavior on Jan 6 isn’t the problem it’s the law.
    Ride your old horse into town shoot up the place, plant bombs, errect gallows, try to hang sheriff then argue the law is bad.

  5. joel fisher says:

    The grotesque obviousness of the Former and his 1/6 minions often seems to blind me to their overt criminality. Of course they were trying to rob the country of a legitimate electoral outcome. How do I know: that’s what they said. How is that not just one crime, but a whole host of crimes, very much including interfering with the proceedings of Congress? Don’t I have a civil right to have my vote count? And isn’t trying to screw me out of it a violation of some civil right? I’ve been laboring under the misapprehension that my vote counted for something. It did, but the unpunished might be more successful next time. And the Former sits, undisturbed, in his palace while a very few of his minions face the music. I wish someone would tell me I wasn’t paying enough attention, that subpoenas were flying, and the Former’s crew were about to answer some questions.

    • Marinela says:

      It pains me to see all the talk about Trump supporters and their feelings. Just because they are loud it doesn’t make them entitled.
      Biden voters are the victims.
      We lived thru the 2016 election, thinking Trump is defeated to show what America is and is not about, then four years of utter insanity, with everything falling apart, then had to rally to support the 2020 election while in a pandemic, defeated Trump, big time, then the horror of January 6, now the aftermath from it when everything seems to get whitewashed.

      Don’t see media rushing to interview a Biden voter.
      How would a Biden voter feel about a minority segment of the population bulldozing their way to erase, undo, Biden votes, voters. This is done out in the open, even glorifying violence as carrier for their unpopular schemes.

  6. Dennis J Bean-Larson says:

    Isn’t it the responsibility of each judge to keep the trail before him moving along without baseless filings despite the fact that each trial and sentencing may have implications for other trials? Wouldn’t it be easier to try them all en masse in a stadium and tie ‘em all up for the firing squad?

    • bmaz says:

      No, that is ludicrous. Don’t bring bunk like that here, it is very much the wrong place for it. And get the fuck out with “mass firing squads”. Never pull that here again.

      • Troutwaxer says:

        Agree completely. For all our arguments over sentencing, the bit about firing squads and stadiums is… appalling, just for a start. Let’s not go there!

    • Rayne says:

      What bmaz said. No advocacy of violence here, especially since none of the charges so far merit anything more than incarceration and fines.

      • timbo says:

        And impeachment charges from the House bringing convictions by the Senate for Trump and other government officials. It’s still not too late, even at this late hour. Or so I’d like to believe anyways.

  7. Tom R. says:

    Brady Knowlton stands indicted on ten counts, including 18 USC §1512 “obstructing an official proceeding”. Ignoring the silly issue of “harm”, there remains the question of how to distinguish this case from (say) the rowdy Kavanaugh hearings.

    Let me counter that question with another question: Why is he not charged with 52 USC §20511 “depriving or defrauding the residents of a State of a fair and impartially conducted election process”? Reportedly he’s on tape announcing his intent to overturn the election. That pretty clearly sets this particular case apart from the Kavanaugh hearings. His lawyer seems to be begging for a superseding indictment. That would give the government some cheap insurance in case an appeals court finds fault with the “obstructing” statute.

    Also what about Jeffrey Clark and his co-conspirators? At what point do they need to worry about 52 USC §20511?

  8. pdaly says:

    Here’s an addition to the 2:13 pm moment in the 1/6/21 timeline when VP Pence was moved to the first hiding place near the Senate Chamber.

    At or around 2:13 pm
    “The Senate immediately went into recess. The C-SPAN feed providing live footage of the proceedings was shut off.”

    It’s from Carol Leonnig & Philip Rucker’s book about Trump “I Alone Can Fix It” as excerpted by them in their July 2021 article in The Washington Post.

    Here’s the moment when Trump inquired about Pence (I assume, even here, that Trump was not having a momentary interest in anyone else but himself):

    “The Pences then made their way to a secure underground area to wait out the riot.

    Back at the White House [the time is not stated but the story implies it is after the Pences were moved to a new secure location in the Capitol], Kellogg was worried about Pence’s safety and went to find Trump.

    “Is Mike okay?” the president asked him.

    “The Secret Service has him under control,” Kellogg told Trump. “Karen is there with the daughter.”

    “Oh?” Trump asked.

    “They’re going to stay there until this thing gets sorted out,” Kellogg said.

    Trump said nothing more. He didn’t express any hope that Pence was okay. He didn’t try to call the vice president to check on him. He just stayed in the dining room watching television.”


    • pdaly says:

      This is an odd exchange. Maybe Leonnig and Rucker can elaborate.

      Seems to me, if Kellogg is “worried about Pence’s safety,” and “went to Trump” then he’d want to be eliciting information from Trump, not providing, as illustrated here, reassurances to Trump about Pence’s plans in the Capitol.

      Or is this Kellogg telling Trump to ‘call off the hounds, Pence has protection and a plan’?

    • Rayne says:

      “has him under control” is an interesting way to say “has secured the VP’s person and the area around them.” Hmmm.

      • pdaly says:

        Hmm, indeed. I wonder if that phrase is a term of art the secret service uses or instead an illuminating phrase on the part of Trump’s group?

  9. pdaly says:

    But then didn’t Trump already know this having just spoken by phone with Tuberville?

    BTW, Tuberville’s description of his call with Trump takes on a different meaning if you wonder whether Tuberville is first ANSWERING a question by Trump followed by an excuse to end the call.

    “Mr. President, they’ve taken the vice president out. They want me to get off the phone, I gotta go.”

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