Well before prosecutors investigated Donald J. Trump’s attempts to overturn the 2020 election, three bills had been drafted for him that could form the basis for an indictment.
The legal questions surrounding the application of the obstruction law to the Jan. 6, 2021 attack have led to a few federal appeals lawsuits — and could even end up in the Supreme Court. But while it may seem risky for Special Counsel, Jack Smith, to include the number of obstructions in an indictment before the charges against it are resolved, the way the law is written would make it almost ideally suited to indict Mr. Trump.
The count — formally known in the Penal Code as 18 USC 1512(c)(2) — makes it a crime to “corruptly” interfere with, impede, or interfere with an official government proceeding, and carries a maximum penalty of 20 years in prison.
In more than 300 Jan. 6 riot cases, prosecutors have used the law to describe the day’s central event: the disruption of Electoral College voting certification that occurred at the Capitol during a joint session of Congress.
Generally, defendants are charged with obstruction charges when prosecutors believe they have evidence that their January 6 actions played a role in halting the certification process or in driving lawmakers away from their duties. But once the indictment began to be used in Capitol riot cases, defense attorneys began to argue that the administration was stretching the statute far beyond its intended scope.
Due to its plain text, the measure seems to have nothing to do with gangs or riots. It was passed into law in 2002 as part of the Sarbanes-Oxley Act, which aimed to crack down on corporate crimes, and was initially designed to prohibit things like document shredding or witness tampering in congressional investigations.
In April, the U.S. Court of Appeals for the District of Columbia upheld the use of the obstruction count, even though it acknowledged that it had never been applied as it was in the January 6 cases.
The decision of the three-judge panel — including two Trump appointees — largely agreed with only one of the complaints against the statute. The panel said any obstruction committed by rioters at the Capitol need not be related solely to the law’s original prohibitions on witness tampering or document destruction.
But the panel reserved judgment on a separate challenge to the law, one that related to the definition of the word “corrupt.” That issue could be more directly related to Mr. Trump, should he be charged with the count.
In its arguments before the appeals court, the government said that corrupt conduct should be broadly understood as all forms of unlawful conduct, such as vandalizing government property or assaulting police officers. The defense argued for a much narrower interpretation, seeking to define the term as acting illegally to acquire something that directly benefits oneself.
This challenge is at the center of Washington’s second appellate court case and could be decided at any time now. It could also affect how the law applies to Mr. Trump: Unlike many of the rioters on the ground who could gain little for themselves by halting the certification process on Jan. 6, Mr. Trump would gain something of immense personal value that day: an election victory.
While it remains unknown how Mr. Smith might structure an obstruction charge, he may choose to use it to describe the pressure campaign that Mr. Trump and some of his allies have mounted against Vice President Mike Pence. The president and lawyers close to him, such as John Eastman, tried to heavily arm Mr. Pence to use his role in overseeing the election certification on Jan. 6 to unilaterally throw the race at Mr. Trump.
Last year, the House Select Committee investigating January 6 insisted that Mr. Trump be charged with obstructing official proceedings, including conspiracy to defraud the United States and incitement to insurrection. But long before those recommendations were made, judges and attorneys involved in Jan. 6 criminal cases were examining whether Mr. Trump’s conduct — particularly his attempts to pressure Mr. Pence — violated the number of impediments.
For example, in November 2021, during an early hearing discussing the validity of the indictment, James Pearce, a prosecutor who has dealt with many of the thorniest legal issues of the Justice Department’s Capitol riot, argued in court that if someone urged Mr. Pence to break the law on January 6, it could be classified as a corrupt act of obstruction. While Mr. Pearce never mentioned Mr. Trump by name, it was clear he was talking about the former president’s efforts to get Mr. Pence to do his bidding that day.
“One of the definitions of ‘corrupt’ is trying to get someone to violate a legal duty,” said Mr. Pearce.
The investigation into Mr. Smith’s election interference is not the first time prosecutors have used 1512(c)(2) as a basis for investigating Mr. Trump. The determination also played a key role in the investigation by Robert S. Mueller III, the special counsel who investigated whether Mr. Trump obstructed efforts to seek ties between Russia and his 2016 presidential campaign.
In 2018, before getting the job as Trump’s attorney general, William P. Barr wrote a memo to top Justice Department officials complaining that Mr. Mueller’s use of the obstruction count was “based on a new and legally untenable reading of the law.”
Mr. Mueller, Mr. Barr wrote, proposed “an unprecedented expansion of obstruction laws” in an effort to find a way to impeach Mr. Trump for actions he could carry out under the Constitution. (Mr. Mueller has never attempted to indict Mr. Trump.)
Some legal experts have said Mr Trump could launch an attack against the obstruction charges, if brought by Mr Smith, by claiming that he truly believed he had been robbed of victory by fraud in the election and therefore could not be charged with corrupt dealing.
But last week, a senior Washington federal judge, Royce C. Lamberth, found a high-profile Jan. 6 rioter guilty of the obstruction count, despite the defendant’s repeated claims that he believed the election was stolen.
Judge Lamberth’s reasoning — which came in the case of Alan Hostetter, a former police chief turned yoga instructor from Southern California — made no mention of Mr Trump’s possible criminal exposure, but it could provide a legal basis for rebutting efforts by the former president to evade the law’s references to “corrupt.”
“Even if Mr. Hostetter sincerely believed that the election had been stolen and that public officials had committed treason, that does not change the fact that he acted corruptly with a conscience of wrongdoing,” Judge Lamberth wrote. “The belief that your actions serve a greater good does not negate awareness of wrongdoing.”
