DOJ Gets Closer to Arguing Terrorizing Congress Amounts to Obstruction

In August, I wrote about how one of Brady Knowlton’s lawyers got up to claim that because there could be no miscarriage of justice in the January 6 vote certification, his client could not have obstructed it under the statute DOJ is using to charge the more serious January 6  perpetrators, 18 USC 1512. I noted that the lawyer, Brent Mayr, was actually suggesting that Joe Biden and the 81 million voters who voted for him would suffer no injury if Biden’s vote certification had never taken place.

Up until that moment, the hearing before Judge Randolph Moss was an admittedly close question. Knowlton’s other lawyer made a robust argument that vote certifications weren’t the kind of official proceeding that could be obstructed. And AUSA John Pearse focused on the word “corruptly” distinguishing other First Amendment protected activities, such as those who protested the Brett Kavanaugh hearing, from those who stormed the Capitol.

Something similar just happened in the Oath Keeper case. After David Fischer made the same argument that Knowlton’s lawyers made — that this was not an official proceeding, to much skepticism from Judge Amit Mehta — Carmen Hernandez got up to argue that her client could not have known that he would risk a 20 year sentence for forcing his way into the Capitol as part of a stack.

Before I explain what happened next, four details are worth noting. First, Hernandez is, in my opinion, a smart and passionate lawyer. Her briefs on this case (surely helped by other public defenders, as they have so many clients facing this charge) were probably the most cogent I’ve read, and I’ve read virtually all of these challenges. That said, Hernandez submitted a 30-page brief, this morning which (Judge Mehta made a point of telling her) he had read by the time of the 2PM hearing. Also, she interrupted Mehta several times. Those things really pissed him off. Finally, of all the Oath Keepers, I think Donovan Crowl may have the best argument that he did not willfully enter into a conspiracy and did not intend to interrupt the vote count. That is, I think Crowl might beat the obstruction charge Hernandez was challenging in court, even if his co-defendants might not, but that’s an evidentiary issue, not a constitutional one.

Still, it was a robust argument. Hernandez made as good a First Amendment argument as has been made about this, that this was just about influence Congress. “Influencing Congress, going to Congress and shouting and making a fool of yourself? That’s what Americans do.”

Mehta challenged prosecutor Jeffrey Nestler why under Yates v. US, in which SCOTUS ruled that destroying fish to avoid prosecution for catching undersized fish was not tantamount to obstruction for a statute envisioning the destruction of documents, this kind of obstruction is not obviously obstruction.

Nestler also made a point that hasn’t been made enough by DOJ — one I noted in my post on Knowlton’s challenge. To argue that the rioters obstructed justice, rather than Trump or those who orchestrated the mobs, you really need to argue that it’s a kind of witness tampering, an attempt to terrify members of Congress not just to flee, but also to vote against the lawful winner of the election. There is abundant evidence that not only occurred on the day of the vote certification, but that the terror of the event led some Republicans to vote against impeachment. This is a classic case of witness tampering, a case where Congress was held hostage in an attempt to terrify them to not do their jobs. And it nearly succeeded. And the after effects remain.

So Nestler argued that the object of the conspiracy was to scare Congress to stop the proceedings. Judge Mehta rightly responded, “Where do I look in the indictment for that?”

But like the Moss hearing, this one ended up with a hypothetical. If someone burst into his courtroom with the specific intention of preventing these proceedings from taking place, Judge Mehta asked Hernandez, would that amount to obstruction. Yes, she responded, resorting immediately to the far weaker argument that Fischer had tried to make, that the vote certification is not an official proceeding.

That may ultimately be the hook on which Mehta starts to unravel this question.

Whatever happens, that will not be the end of this question, because until DOJ makes a much stronger argument, both about how the terror was designed to function here and what distinguishes not only January 6 defendants from Kavanaugh protestors, but also the January 6 obstruction defendants from those charged with parading, judges will continue to face this difficult question. And at some point, a defense attorney will avoid providing the judge the obvious way to answer the question.

33 replies
  1. Alan says:

    Please help me out, not sure I understand the differences here.

    The Kavanaugh protestors were not trying to stop the vote, just influence the outcome using speech, which is not obstruction.

    Conversely, the J6 defendants were:
    – attempting to influence the outcome using threats or force, which is obstruction.
    – attempting to stop the certification using threats or force, which is obstruction.

    So there are two independent grounds for charging the J6 defendants with obstruction, and none for charging the Kavanaugh protestors. Did I understand that correctly?

    BTW, are we talking about 18 U.S. Code §1505, or is there another statute that applies?


    §1505. Obstruction of proceedings before departments, agencies, and committees

    Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress—
    Shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both.

    • emptywheel says:

      I think that works for defendants who come dressed in paramilitary gear and enter as a stack. I don’t think it’s that easy for some of the other people charged with obstruction.

      • Leoghann says:

        But we have small groups of rioters, such as Colt, Sandlin, and DeGrave, who conspired among themselves, even though they weren’t involved with Proud Boys, Oath Keepers, etc. They arrived together, and brought some protective gear and some weapons to Washington. They weren’t just checking things out in the Capitol Building, they were there for the stated purpose of stopping the certification of the vote. Seems to me that obstruction would be pretty easy to prove with informal groups like that.

        • subtropolis says:

          It seems to me that prosecutors shouldn’t have to get into the weeds of intent for every individual who participated. And this garbage about what constitutes an official proceeding is risible. But, IANAL, just a befuddled onlooker.

  2. WilliamOckham says:

    The fact that the defense lawyers keep falling back to “not an official proceeding” leads me to expect that the DoJ is going to win this one eventually. The definition of official proceeding explicitly includes “a proceeding before the Congress” as a distinct category.

    • P J Evans says:

      The fact that it’s specifically described in the Constitution as one of the duties of Congress should weigh a bit on the side of “official proceeding”.

      • BobCon says:

        It should, although what the right wing extremists on the Supreme Court say is a different matter.

        I think the behind the scenes communications may matter though. I think McConnell may be unhappy to see Alito et al open the doors to mobs shaking down the Senate, and if anyone’s signals matter to the extremists on the court, they come from McConnell.

        I don’t know what deals he may cut, or what signals he may send, though. The day may come soon when someone like Cotton or Hawley makes a play for GOP leader in the Senate, and who knows how that plays out.

        • skua says:

          If either are able to turn it into a Trumpist loyalty contest then we might see a shift from skilful devious corrosion of the nation and expert obstruction to a “mine the salient” approach maximising disruption and divisiveness.
          A successful investigation and prosecution of Trump’s Jan 6 project might be the barrier at that cliff edge.

        • emptywheel says:

          Right: The reason the Kavanaugh protestors are key is not just because it’s a recent example where 2 different sets of protestors, between them, did what the Jan 6 defendants did (though without the threats of violence). But also because Kavanaugh gets a vote. So the opinions from McFadden and Kelly and Friedrich (who basically begged to be thrown this motion) will be key.

  3. CD54 says:

    Doesn’t the pre- and post-riot social media evidence (vitriol, bragging, call to arms) prove that at the very least most of these defendants specifically believed that stopping the vote certification would officially prevent Joe Biden from becoming President?

    • emptywheel says:

      Yes. Almost no one is being charged with obstruction without that.

      The key on the Oath Keepers, though, is that some didn’t say things like that, so convicting them requires also proving they entered into a conspiracy.

      • Vinnie Gambone says:

        Wasn’t it called a “Stop the Steal” rally? Why did you come? I came to stop the steal. Where and how were you going to stop it? In congress. If we were going to stop it, we had to stop it before they certified the election. Even Trump and Guliani had congressmen on the phone asking for ways to delay the procedure. They breached the building to stop the steal. This seems like such bullshit. “Stopping” the steal means stopping the procedure. That’s what they did, temporarily. They didn’t go to the gift shop. Contempt of congress too. Inching towards them not getting the punishment they deserve. This is nuts.

  4. PhoneInducedPinkEye says:

    Thanks for live tweeting and the analysis.

    Why wouldn’t DOJ include something in the indictment that the intent of the riots was to terrorize the members of the proceeding and either alter the outcome or stop it altogether?

    In the indictments we’ve seen to date have they been including the context leading up to Jan 6th, that these people knew exactly why they were there?

    • bmaz says:

      Because at this point, they only usually file speaking indictments when it behooves themselves to do so. They are on their plan, not yours. Indictments can be extremely minimalistic.

      Sometimes indictments will be completely fleshed out, sometime they are not. Sometimes in between. That is entirely in the governments prerogative.

      • PhoneInducedPinkEye says:

        I’m guessing they only need to clear the hurdle to have credible charges in the indictments and the rest will out in hearings/trials?

        • bmaz says:

          Oh, the frustration is perfectly understandable. DOJ has done a lot of fully fleshed out indictments on 1/6 to date. But they do not have to. It can be fairly minimalistic. No clue what their thought process is in any given document, but there are a lot of reasons in any given case.

    • Raven Eye says:

      Yeah — the video game track was pretty annoying, but the story was good and worth sharing. If DC FEMS’s ability to respond in this incident is a result of more and better resources, that’s a quantum leap from where they were on 9/11 and the Pentagon Attack.

      Listening to these personnel was like a contextual flashback to all the interviews we conducted 20 years ago.

      • AndTheSlithyToves says:

        There has been substantial improvement since 2001 in DCFEMS but I think the bigger changes came about after the 2006 death of NYT reporter David Rosenbaum. Even then, it was like pulling teeth–I was part of a citizens group that rode herd on newly-elected Mayor Fenty, who had run as a reformer against the old guard in DC. There are still issues today that need to be addressed.

  5. d4v1d says:

    I too am one who recoils at the word ‘corruptly’ as a legal term. For one, it’s an adverb – and despite a verbose legal definition, is both bad English (that’s my peeve) and feels inherently subjective. And secondly, the offenders do not have official responsibilities in this context so it seems to me that even as a term of art, ‘corruptly’ wouldn’t apply (though it would to members of Congress who might have been secretly in on this).

    • emptywheel says:

      That’s why I think terrorizing Congress needs to be considered. Should the Proud Boys have been charged with obstruction when they crafted a threat against Amy Berman Jackson when she was presiding over the Stone case? Do threats and bribes to jurors count as a corrupt attempt to obstruct justice? Yes. And here you could argue they did it either because they wanted their candidate, who had lost, to stay in power, or that they were doing it out of interest for Trump.

      • Alan says:

        Black’s Law Dictionary, 9th ed, 2009

        corruptly, adv. (16c) In a corrupt or depraved manner; by
        means of corruption or bribery.• As used in criminal law
        statutes, corruptly usu. indicates a wrongful desire
        for pecuniary gain or other advantage.

        corruption. (l4c) 1. Depravity, perversion, or taint; an
        impairment of integrity, virtue, or moral principle; esp.,
        the impairment of a public official’s duties by bribery.
        [Cases: Officers and Public Employees key121.]
        “The word ‘corruption’ indicates impurity or debasement
        and when found in the criminal law it means depravity or
        gross impropriety.” Rollin M. Perkins & Ronald N. Boyce,
        Criminal Law 855 (3d ed. 1982).
        2. The act of doing something with an intent to give
        some advantage inconsistent with official duty and the
        rights of others; a fiduciary’s or official’s use of a station
        or office to procure some benefit either personally or for
        someone else, contrary to the rights of others.

    • Alan says:

      Agreed, and for that reason 18 U.S. Code §1505 might be more apt since it includes “corruptly, or by threats or force”.

  6. Leoghann says:

    I really appreciated your live, tweet-by-tweet coverage today. The arguments Hernandez made, and Mehta’s responses, were quite an exchange.

  7. harpie says:

    WOW! Jason Leopold got this: [!!] [Capitol Police is NOT subject to FOIA]

    The Capitol Police Said Jan. 6 Unrest On Capitol Grounds Would Be “Highly Improbable”
    BuzzFeed News has exclusively obtained the permits Capitol Police issued for protests on Capitol grounds for Jan. 6 — a rare window into a secretive organization and its most consequential day.
    Jason Leopold September 9, 2021 11:18 a.m

    The chief of the Capitol Police and its top intelligence officer personally approved permits for six demonstrations to be held on Jan. 6, 2021, despite signs that one of the applications was filed for an organization that didn’t exist and that five of them were a proxy for a group staging large, violent protests across the country. […]

    • Raven Eye says:

      This caught my eye: “In a statement to BuzzFeed News, a spokesperson defended the actions of the Capitol Police: “Denying someone a permit based only on a belief that the group is a ‘proxy’ for another group would be an unlawful prior restraint.”

      If we took that to the extreme, would it mean that any permitting process that required the application be from a real human being, who would be the responsible party, is prior restraint?

      • PieIsDamnGood says:

        Didn’t one of the groups not even exist? Can speech of a non-existent entity be restrained? What is the sound of one hand clapping?…

      • earlofhuntingdon says:

        The 1A argument seems to distract from obvious issues. Routine security measures would seem to dictate evaluating the behavior of the group for which another group is regarded as a proxy. Besides, like other constitutional rights (except the imperial 2A), the 1A is subject to exceptions, which include reasonable measures to protect public property and the safety of elected officials. That’s the rationale for requiring permits to assemble and parade. It was also the public rationale for such BushCheney inventions as 1A corrals, conveniently situated far from news cameras.

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