Judge Carl Nichols Upends DOJ’s January 6 Prosecution Strategy

On Friday, I argued that both the January 6 Committee and TV lawyers wailing about DOJ’s slow pace of prosecution needed to look more closely at the litigation surrounding DOJ’s use of 18 USC 1512(c)(2) to prosecute January 6 defendants.

[U]ltimately all 22 judges are likely to weigh in on this obstruction application (and there are only two or three judges remaining who might conceivably rule differently than their colleagues), there are just a handful of judges who might face this obstruction application with Trump or a close associate like Roger Stone or Rudy Giuliani. Judge Mehta (by dint of presiding over the Oath Keeper cases) or Judge Kelly (by dint of ruling over the most important Proud Boy cases) might see charges against Roger Stone, Rudy Giuliani, or Alex Jones. Chief Judge Howell might take a higher profile case herself. Or she might give it to either Mehta (who is already presiding over closely related cases, including the January 6 lawsuits of Trump) or one of the two judges who has dealt with issues of Presidential accountability, either former OLC head Moss or Carl Nichols. Notably, Judge Nichols, who might also get related cases based on presiding over the Steve Bannon case, has not yet (as far as I’m aware) issued a ruling upholding 1512(c)(2); I imagine he would uphold it, but don’t know how his opinion might differ from his colleagues.

The application of 18 USC 1512(c)(2) to January 6 is not, as the TV lawyers only now discovering it, an abstract concept. It is something that has been heavily litigated already. There are eight substantive opinions out there, with some nuances between them. The universe of judges who might preside over a Trump case is likewise finite and with the notable exception of Judge Nichols, the two groups largely overlap.

So if TV lawyers with time on their hands want to understand how obstruction would apply to Trump, it’d do well — and it is long overdue — to look at what the judges have actually said and how those opinions differ from the theory of liability being thrown around on TV.

Judge Carl Nichols — the Trump-appointed judge presiding over the Steve Bannon case and as such one of the most likely judges to preside over any Trump prosecution — will undoubtedly finally generate needed attention to what judges are doing.

That’s because he just rejected DOJ’s application in the case of Garret Miller. In places, the decision is reasonable; in others, it is far too clever. Nichols acknowledges only the Randolph Moss opinion in on this topic, thereby ignoring some language addressing issues he raises in his opinion.

Nichols disagrees with Miller’s contention that the vote certification was not an official proceeding.

[I]t makes little if any sense, in the context here, to read “a proceeding before Congress” as invoking only the judicial sense of the word “proceeding.” After all, the only proceedings of even a quasijudicial nature before Congress are impeachment proceedings, and Miller has offered no reason to think Congress intended such a narrow definition here.

But he argued that the word “otherwise” in the statute necessarily connects the charged clause to the one prior to it, and should be read as a limitation of it. From that, he reads the statute to pertain only to evidence tampering, not witness tampering.

He then cites Justice Kavanaugh to argue that under the rule of lenity, such ambiguity here must be judged in favor of the defendant.

“Under the rule of lenity, courts construe penal laws strictly and resolve ambiguities in favor of the defendant,” id., so long as doing so would not “conflict with the implied or expressed intent of Congress,” Liparota v. United States, 471 U.S. 419, 427 (1985). Under current doctrine, the rule of lenity applies to instances of “grievous” ambiguity, see Shular v. United States, 140 S. Ct. 779, 788 (2020) (Kavanaugh, J., concurring) (collecting citations), a construction that is arguably in tension with the rule’s historical origins, see 1 William Blackstone, Commentaries *88 (“Penal statutes must be construed strictly.”). See also Wooden v. United States, ___ U.S. ___, ___ (2022) (Gorsuch, J., concurring in judgment) (slip op. at 9–12); but see id. (Kavanaugh, J., concurring) (slip op. at 1–4).

Via a variety of means, Nichols judges that 1512(c)(2) must relate to the destruction of evidence, which Miller is not accused of doing.

The Court therefore concludes that § 1512(c)(2) must be interpreted as limited by subsection (c)(1), and thus requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.

This argument has holes in it–holes that were addressed by some of the opinions he ignores.

Nichols simply dismisses the argument that Congress could have provided the kind of limiting language he thinks should be inferred.

Another court has sought to allay this overlap concern by pointing to the language Congress could have used:

[I]t would have been easy for Congress to craft language to achieve the goal that Defendants now hypothesize. Congress, for example, could have substituted Section 1512(c)(2) with the following: “engages in conduct that otherwise impairs the integrity or availability of evidence or testimony for use in an official proceeding.” The fact that Congress, instead, enacted language that more generally—and without the limitations that Defendants now ask the Court to adopt—criminalized efforts corruptly to obstruct official proceedings speaks volume.

Montgomery, 2021 WL 6134591, at *12. That is certainly true, and in fact is why the Court does not believe that there is a single obvious interpretation of the statute. But it is also the case that reading § 1512(c)(1) as limiting the scope of § 1512(c)(2) avoids many of these structural or contextual issues altogether

He also ignores some differences between clause c and other clauses of 1512, arguments made and dismissed by some of the opinions he ignores.

At a minimum, conduct made unlawful by at least eleven subsections— §§ 1512(a)(1)(A), 1512(a)(1)(B), 1512(a)(2)(A), 1512(a)(2)(B)(i), 1512(a)(2)(B)(iii),1512(a)(2)(B)(iv), 1512(b)(1), 1512(b)(2)(A), 1512(b)(2)(C), 1512(b)(2)(D), and 1512(d)(1)— would also run afoul of § 1512(c)(2).

He also makes a comparison between clause b and c, ignoring that c(2) — and the behavior Miller is accused of — is equivalent to b(2)(D).

DOJ will have a ready response to this on appeal. They may count themselves lucky that this particular opinion is not a particularly strong argument against their application. Nichols basically argues that intimidating Congress by assaulting the building is not obstruction of what he concedes is an official proceeding.

But this will cause a number of prosecutions, including of some defendants who were about to provide key cooperation, to grind to a halt until this is appealed.

Update: In other news, Guy Reffitt was just found guilty on all five charges against him. That includes the obstruction charge. So the DC Circuit will soon be getting two appeals of the obstruction application.

Update, 4/1/22: DOJ asked Nichols to reconsider, making two legal and one common sense arguments:

  • You can’t really argue there’s some grievous uncertainty implicating the rule of lenity if 13 of your colleagues don’t see it.
  • Your ruling that 1512(c)(2) requires document destruction is an evidentiary question, not a motion to dismiss one, and if we have to we’ll argue that Miller’s actions posed a risk to the actual ballots.
  • Your logic would suggest that, per the Reffitt scenario, attempting to drag lawmakers out of Congress to prevent them from certifying the vote would not be obstruction.

Other opinions upholding obstruction application:

  1. Dabney Friedrich, December 10, 2021, Sandlin*
  2. Amit Mehta, December 20, 2021, Caldwell*
  3. James Boasberg, December 21, 2021, Mostofsky
  4. Tim Kelly, December 28, 2021, Nordean; May 9, 2022, Hughes (by minute order), rejecting Miller
  5. Randolph Moss, December 28, 2021, Montgomery
  6. Beryl Howell, January 21, 2022, DeCarlo
  7. John Bates, February 1, 2022, McHugh; May 2, 2022 [on reconsideration]
  8. Colleen Kollar-Kotelly, February 9, 2022, Grider
  9. Richard Leon (by minute order), February 24, 2022, Costianes
  10. Christopher Cooper, February 25, 2022, Robertson
  11. Rudolph Contreras, announced March 8, released March 14, Andries
  12. Paul Friedman, March 19, Puma
  13. Thomas Hogan, March 30, Sargent (opinion forthcoming)
  14. Trevor McFadden, May 6, Hale-Cusanelli
32 replies
  1. I Never Lie and am Always Right says:

    I think he meant to cite the Rule of Hannity (“The other side’s gonna lose because I never lie and am always right.”)

  2. CD Wilsher says:

    This shouldn’t delay other cases. They can keep moving forward while Nichols’s opinion is being appealed. If the COA upholds Nichols, then those charges can be dropped. If a defendant wants to roll the dice and assume it will be upheld, that’s his call.

  3. Bugboy says:

    Typo: “…a should be read as a limitation of it…” should be “…and should be read as a limitation of it…”?

  4. John Paul Jones says:

    Just wondering: would this go to an en banc panel? And given that Nichols clerked for Thomas, what are the odds that he tried out his interpretation with a quick phone call to Thomas, to see if said interpretation would fly at the Supremes? It looks like the kind of narrow textualism (though of course I am neither lawyer nor historian) which the Supreme Court used in the late nineteenth century to blunt the impact of the Thirteenth, Fourteenth and Fifteenth Amendments.

  5. OldTulsaDude says:

    It’s easy to discern from his photo why Trump appointed him-I would bet somewhere in his family tree you would find immigrants on cross-country skis .

  6. WilliamOckham says:

    I get irritated by the legal straining over the word otherwise. It just means “in a different way” in that sentence.

    • viget says:

      I agree William. The logical operator there is “or” and to me, the “otherwise” implies an exclusive or, meaning either a proceeding is obstructed under clause (c)(1) OR clause (c)(2), but NOT both. That interpretation directly contradicts the judge’s ruling.

      From a symbolic logic standpoint I think it is pretty clear, but we all know lawyers seldom seem to follow logic these days.

      Except bmaz, of course.

  7. Silly but True says:

    Gaming out the end on this charge: ultimately, the question of this type of obstruction being a crime may be an axiomatic one: this application of obstruction will be a crime if at least five specific people of nine say it is, and it won’t be a crime if at least five specific people of nine say it’s not. It won’t matter how many judges decide otherwise to get there.

    Nichols could be a hack; a rank partisan. But ultimately this also has an element of being a gamble on part of DoJ to push this specific application of the obstruction charge. At least it was never a home run on its part to construe it in this manner.

    So the question then gets to how SCOTUS might decide. Scalia hated ambiguities in law, and especially hated allowing Executive branch any deference to resolve ambiguities; he most often went against Chevron in general, and probably had the highest votes against Executive deference in his time on seat. This suggests that at least Thomas, Gorsuch, and Kavanaugh will uphold Nichols without much question. Gorsuch has emerged as one of Chevron’s largest critics, filling role of his idol.

    On opposite is Breyer who has been a steadfast and nearly lone champion generally siding with Chevron. Kagan & Sotomayor both have dissented from Breyer and have been in majorities both upholding and dismissing Chevron in specific cases. Both Kagan & Sotomayor also have embraced more empathetic conclusions towards defendants in cases of ambiguities, or in cases of less severe punishments overall, and so may be sympathetic to Jan. 6 defendants’ obstruction arguments.

    Alito may actually be the wild card here: one of his personal interests on bench is generally being as supportive of a regime of government regulations as he can, unless it indicts another of his causes.

    According to Fordham Law Review, Alito has singly voted most often in favor of allowing Executive deference in Chevron cases of all current sitting justices.

    One can look at Pereira v Sessions, decided 8-1 _against_ Executive deference, with Alito and not Breyer being the lone dissenter, holding in a strong dissent his eight other justices essentially as hacks unable to read or understand the DoJ’s simple application of statute.

    And so it is Alito who could perhaps be persuaded to side with DoJ’s interpretation?

  8. joel fisher says:

    “Nichols basically argues that intimidating Congress by assaulting the building is not obstruction of what he concedes is an official proceeding.”

    This is exactly the sort of up is down; light is dark; black is white BS that causes people–with good reason–to hate lawyers.

      • WilliamOckham says:

        As it turns out, texting people in advance that you’re going to do some crimes, live streaming yourself while doing said crimes, and then bragging about doing the crimes to your own family members … makes it tough to come up with a solid criminal defense strategy.

      • joel fisher says:

        The next trial, absolutely; but the sentencing for this guy might clear out a lot of cases. I believe I remember something to that effect on this very site.

        • bmaz says:

          Yes, sentencing will be really interesting. Unfortunately sentencing in federal cases does not happen quickly.

        • Charles Wolf says:

          Sentencing is currently set for June 8.
          I’d wager at least, Reffitt will become the 1st Jan-6 def to get a double digit stretch.

        • emptywheel says:

          I wouldn’t be surprised if he comes in under that–maybe 8 years? But keep in mind his wife and daughter will argue for leniency on the threats to the family.

        • emptywheel says:

          Obstruction with threats of violence would be a 7-9 year under sentencing guidelines. He’s got that times two.

          That was my logic, anyway.

      • Leoghann says:

        Last night I reread a couple of fairly detailed descriptions of the testimony, and I’m still damned if I can see any kind of a defense case being made. I’ve read that William Welch is a respected attorney. “But those videos were all deep fakes” isn’t a very respectable defense.

        • bmaz says:

          There was no defense. All based on the hope of appeal. Not usually a good plan, but then again, trial was not a good idea at all.

    • Purple Martin says:

      “Refitt convicted on all counts.”

      …including, coincidently, “obstruction of an official proceeding.”

  9. dmerch says:

    If I read Judge Nichol’s opinion correctly, so long as the evidence has not been brought over to the courthouse and remains safely ensconced in the court records building across the street, you could quite literally blow up the courthouse and not be guilty of impeding or obstructing a governmental proceeding. Other crimes, sure, but not impeding the proceeding. Interesting theory.

      • Gee says:

        You’ll probably have to correct me (or simply admonish me) as well, as I had a similar thought.

        The subsection Nichols refers to says they would have had to actively taken some documents themselves, once inside the chamber, which they did not. However, they did make it into the chamber, and it’s a reasonable assumption that they would have taken any documents, since on many videos they appeared to be looking for them.

        The reason they didn’t find and take the documents is that they were removed, specifically due to the action of these people’s pending intrusion. So, technically, they didnt take the docs, but that is only because their attempt at taking them made it impossible, in the particular instance of how this played out. Had they gotten there sooner, they’d have done much more damage, not limited to some specific document handling that would qualify as obstruction.

        I know I’m probably being totally unrealistic as to how this should work, but it just seems that Nichols is making an excuse for them on a technicality.

  10. greenbird says:

    good morning to me, as i shall now recalibrate my terribly abused eyebowls …
    the worse it gets the better i like it because the gap between those who pay close attention and those who are meme-mavens widens: skimming thread comments gets easier, time used in much better ways.
    that was, for a geriatric bird, a whopper of a slog. as usual, i am very glad i did it. the gap between well-argued and crapola also widens. the crapolians are crafty, though: get familiar with their ways. thanks, you guys, this is better than ever.

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