The Obstruction Charges That May Derail Trump’s Election-Interference Trial

How can the district-court case proceed to trial on March 4 when an issue central to the trial will not be decided by the Supreme Court until June?

T he Supreme Court’s announcement on Wednesday that it will review some of the prosecutions the Justice Department has brought against over 300 Capitol-riot defendants under a controversial obstruction statute was not unexpected. As we’ve detailed, the statute — Section 1512(c) of federal penal law (Title 18, U.S. Code) — has divided the federal district court in Washington, D.C., where a Trump-appointed judge has bucked his colleagues (mostly Democratic appointees) by finding it inapplicable to the rioters. (See here and here.) Even more illustrative, these obstruction cases so vexed the D.C. Circuit federal appeals court that, in United States v. Fischer (April 7, 2023), a three-judge panel cranked out three opinions so discordant they seemed to disagree even about which one reflected the majority view. (See here.)

Hence the need for Supreme Court intervention has been clear. When Biden Justice Department special counsel Jack Smith indicted Donald Trump, though, the ramifications of the high Court’s eventual review became profound indeed. The obstruction law at issue is the heart of Smith’s case against the former president, who is also the prohibitive front-runner for the Republican presidential nomination. Starting on March 4 — in the middle of the campaign, on the day before Super Tuesday — Trump is slated to face a two- to three-month trial in Washington, D.C., on a four-count indictment central to which are two felony obstruction charges brought under the controversial statute, each of which carries a potential 20-year prison sentence.

Obviously, the high Court has agreed to review the Section 1512(c) cases because, as manifested by the sundry lower-court rulings and commentary, the statute’s application to January 6 defendants is debatable — attenuated, as we shall see, from the conduct the provision was enacted to address. So take note: The theory underlying Smith’s invocation of this obstruction law against Trump is more of a reach than the Justice Department’s reliance on the law in prosecuting violent rioters.

Section 1512 applies to all kinds of official proceedings. There is no doubt that it covers congressional proceedings, such as the constitutionally and statutorily mandated joint session held on January 6, 2021 — the proceeding, conducted about two months after presidential elections, at which the House and Senate (including the vice president, in his role as the Senate’s presiding officer) bear witness to the counting of state-certified electoral votes and thus ratify that the winner of a majority of those votes will be inaugurated two weeks later (at noon on January 20) as president of the United States.

The big question is: What obstructive conduct does the obstruction law cover?

Section 1512 was enacted long before its subsection (c) was added by an amendment we’ll come to presently. The statute is titled “Tampering with a witness, victim, or an informant.” Its purpose, plainly, was to criminalize conduct that corrupted the evidence presented at an official proceeding.

Subsection (c) was added by the 2002 Sarbanes–Oxley legislation to deal with a strange lacuna in the federal penal code: Under the patchwork of obstruction statutes in preexisting law, it was illegal to cause others to shred documents relevant to a proceeding, but not to shred the documents oneself.

This and other problems were brought into sharp relief by the Enron scandal — specifically, in the prosecution of Arthur Andersen LLP, Enron’s accountants. As the client was imploding but prior to receiving any subpoenas, Andersen’s executives handed out their document-retention policy to their employees, who took it upon themselves to shred about two tons of documents. Justice Department prosecutors indicted the company on the aggressive and dodgy theory that the existing obstruction statutes applied to the shredders, who should have anticipated that there would be a government investigation. The Supreme Court unanimously threw out the conviction in 2005 because there had been no crime — cold comfort to a firm that for nearly a century had been a trailblazer of international accounting standards, but that was destroyed by the felony charges.

In the interim, Sarbanes–Oxley undertook to close the shredding “loophole” in the familiar Washington manner of, “Why use a scalpel when we have this perfectly good axe?” Section 1512(c) starts out by targeting anyone who

corruptly . . . alters, 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. [Section 1512(c)(1).]

That would have been more than enough to nail any shredder — particularly given the statute elsewhere provided that an official proceeding need not be pending at the time of the offense (i.e., if you had reason to know an investigation was inevitable, the happenstance that a subpoena had not yet been served was not a license to shred relevant documents). But just in case they might have missed something, lawmakers widened the net to absurd lengths, adding a subsection — the one of consequence for our purposes — that further targeted anyone who

corruptly . . . otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so. [Section 1512(c)(2).]

What does (c)(2) mean? Good question — like asking Pandora, “Gee, what’s in the box?”

The Constitution gives us a right to petition the government, which means we have a right to try to influence Congress, including to obstruct or impede it from doing things that we oppose. So how can that be a crime? Well, to win a conviction, defenders of the law stress that §1512(c)(2) requires prosecutors to prove that a person took such actions corruptly. Yet that doesn’t really fix the problem, does it?

Corruptly is a vague term. It accounts for a good deal of motivation that, while unsavory, is not necessarily criminal. Read literally, the provision could criminalize — or discourage people from engaging in — conduct that is constitutionally permissible. To take an example, Smith’s indictment of Trump concedes that, under the First Amendment, the then-president had the right to claim the 2020 election was stolen, even if he knew that wasn’t true. Objectively speaking, to conduct oneself that way is corrupt. For a public official — indeed, the nation’s highest official — to do it regarding a matter of such gravity is impeachable. For a person of Trump’s peculiar make-up to do it is probably pathological. Still, whatever else it may be, it is not criminal. While Trump obsessives often miss this distinction, in the criminal law — unlike moral, ethical, political, and even civil-law contexts — Donald Trump is presumed innocent. If you are willing to stretch the criminal law to the breaking point because your sense of cosmic justice cries out for the word “felony” to be branded on his turpitude, that is a perversion of criminal justice. And contrary to what some seem to believe, there is no sui generis “Trump Law”; if you curtail due process to get him, the precedent thus set curtails it for everybody.

(Note: Trump claims that he not only believed what he was spouting about a stolen election, but continues to believe he really won.)

On the other hand, some conduct that is corrupt is patently criminal. A person who uses a pole to bash a police officer guarding a government building — in this case, the very seat of government — surely knows he is acting criminally. Same with a person who bashes his way into the Capitol, damaging doors and windows while knowing the building is closed to the public. If that is done for the specific purpose of preventing Congress from counting electoral votes, or at least influencing how it counts them, isn’t that corruptly obstructing, influencing, and impeding Congress? Let’s stipulate that Congress was thinking of Arthur Andersen, rather than of a Capitol riot scenario, when it enacted §1512(c). Even so, it isn’t hard to read the “otherwise” clause as capturing the horrific actions of the January 6 uprising.

Given the danger that §1512(c)(2) could easily be read to prohibit conduct that the Constitution permits, even though its ambit includes behavior that is obviously criminal, the pressing question is: Can the statute, as written, be limited so that it proscribes only what can properly be proscribed?

Well, it may be possible to give the statute what’s known as a “narrowing construction.” Under a venerable canon of statutory interpretation, ejusdem generis, “Where general words follow an enumeration of two or more things, they apply only to . . . things of the same general kind or class specifically mentioned.” A similar canon, noscitur a sociis, instructs that a word is known by its associates — i.e., if a word seems ambiguous, we may be able to suss out its meaning by clearer words with which it is grouped. Ergo, when — as frequently occurs in statutes — a catch-all “otherwise” clause is preceded by a list of specific acts, such as subsection (c)(1)’s “alters, mutilates, or conceals a record, document, or other object,” then these specific terms are deemed to illustrate the kind of behavior Congress was targeting in its more general “otherwise” clause.

Well, okay, but . . . let’s not forget that the Constitution’s separation-of-powers principles make it inappropriate for courts to engage in narrowing constructions that are tantamount to rewriting Congress’s text. The late, great Justice Antonin Scalia explained why in a concurring opinion in another of the Enron cases, Skilling v. United States (2010). “The power to define new federal crimes” belongs solely to Congress — not to the courts, and certainly not to prosecutors. If a statute is too vague — if it does not put a person of ordinary intelligence on notice of what is forbidden — then a judge must not join the Justice Department in teasing out a plausible construction of what conduct it might proscribe, to our surprise and peril. The judge, instead, should find the statute unenforceable and leave it to lawmakers to go back to the drawing board.

This brings us to another salient question: Must the outer limits of statutory reach be fixed with certainty? If conduct is so egregious that it appears to be within the ballpark of what Congress was targeting in a criminal statute, should we be concerned that the statute, by its plain terms, might also capture other conduct that Congress was not targeting at the time of enactment? Put another way, is it tolerable to leave on the books promiscuous statutes that invite prosecutorial adventurism?

I believe, at least with respect to criminal statutes, whose violation can result in imprisonment and significant financial penalties, we must be able to look at the provision and know with certainty what is prohibited. I could abide narrowing constructions if prosecutors could be trusted to confine themselves to the heartland of behavior Congress was understood to be targeting. But they can’t. Mind you, I say that with more admiration than rebuke. I was privileged to work for 20 years in the nation’s best prosecutors’ office, the U.S. attorney’s office for the Southern District of New York. The lawyers I worked with there were brilliant. The SDNY draws the best and the brightest. They work exceptionally hard, and the ethos of the place — as one would expect in a hive of smart, competitive professionals — is creativity. It is a natural thing for bright, ambitious lawyers whose job is to protect the public and whose self-perception is that they’re the guys in the white hats, to stretch the limits of law for the greater good of bringing those who prey on society to heel.

Alas, the job, as courts must periodically remind prosecutors, is to enforce the laws we have. It is not to forge proscriptive annexes onto those laws, rationalizing that life is complicated and that we thus need to be elastic in construing existing statutes so they can cover unforeseen forms of condemnable conduct. Making laws that criminalize what was previously unforeseen is Congress’s job.

What does all this mean for the Capitol riot defendants?

Despite the sweeping “otherwise” provision ((c)(2)), the defendants urge that, at most, §1512(c) is meant to address tampering with evidence in a scheme to deceive the tribunal. If subsection (c)(2)’s reach is not restricted to the kind of tampering conduct specified in (c)(1) — and in the title of the statute — then it is effectively limitless. And if it is limitless, then it necessarily targets conduct that the Constitution protects. Hence, they contend that the statute (a) cannot be applied to them because they did not engage in evidence tampering, or (b) should not be applied to anyone because it is unconstitutionally vague and judges have no business rewriting it.

Not so fast, say prosecutors. Under those longstanding construction canons, interpreting statutes begins by reading the text; if it is not ambiguous, that’s the end of the inquiry. The Justice Department doesn’t see any vagueness concerns because the term corruptly has long been a staple of obstruction statutes. It is a state of mind in which one knows his conduct is wrong. Subsection (c)(2), prosecutors reason, was added to the law to target people who, even if they were not tampering with evidence, were “otherwise” engaging in behavior that was patently illegal and intended to obstruct, impede, or influence an official proceeding. As observed above, everybody knows it’s a crime — the antithesis of lawful persuasion — to assault police and force one’s way into a restricted-access government facility. If you engage in unmistakably criminal conduct to influence or impede an official proceeding, that’s corrupt obstruction.

This is a tough case — tougher than I considered it to be when the conflicting views of the trial judges emerged, and even when the deeply divided opinions in the D.C. Circuit’s Fischer decision, upholding the obstruction prosecutions, were published. I’ll get to what altered my thinking in a moment. For now, suffice it to say that if the Supreme Court affirms the government’s use of §1512(c)(2) to charge Capitol rioters, which I think is likely but no sure thing, it will be for one reason and one reason alone: Forcible rioting is such unequivocally criminal conduct that a person who engages in it for the purpose of disrupting or influencing the outcome of a proceeding has to be seen as engaged in criminal corruption. If the term “corruptly otherwise obstructs” may properly be applied to anything other than evidence tampering, it is that.

It is worth stressing this because Smith’s corruption case against Trump does not involve anything so self-evidently criminal as rioting. Smith knows that — it’s why he is trying to insert rioting evidence into the case even though he has not charged Trump with a violent crime (which you’d never know from his brief public statement after filing the indictment, which was devoted almost entirely to the uncharged violence). Trump did not incite a riot. To the contrary, in the course of claiming the election was stolen from him — which, to repeat, even Smith admits the Constitution allowed him to do — he posited a cockamamie legal theory that the vice-president had the power to either invalidate state-certified electoral votes or remand them to the states for further investigation of his stolen-election claims.

What shook my conviction that the disputed obstruction statute is properly invoked to prosecute the Capitol rioters was the Supreme Court’s rulings in May 2023, throwing out the corruption convictions of two cronies of former New York governor Andrew Cuomo — Joseph Percoco and Louis Ciminelli. I wrote about the cases here. They involve not obstruction but fraud — another vague term that is meant to apply to deceptive schemes involving money or property. Aggressive prosecutors (as well as Congress and the courts) have tried to stretch fraud into a vehicle for criminalizing deceptive practices that undermine their vision of good government — that’s why the Percoco and Ciminelli cases were before the Court.

After poring over these cases, I was convinced (as I explained here) that Smith would not indict Trump over his loathsome behavior in the weeks between Election Day and the Capitol riot. Concededly, the fraud statute at issue in Percoco and Ciminelli was not the fraud-on-the-United States statute that Smith was then considering using against Trump (and did ultimately use). Nevertheless, the Court was emphatic that fraud is a financial crime, not a license for prosecutors to criminalize mendacious schemes to acquire or maintain such intangible benefits as political power.

The Court’s opinions also persuaded me that Judge Gregory Katsas, the superb D.C. Circuit jurist whose dissenting opinion in the Fischer case I had undervalued, had been more attuned than his colleagues were (and than I was) to the justices’ overarching concerns about vague criminal statutes and prosecutorial aggressiveness.

Clearly, a solid majority of the high Court is more inclined to adopt narrowing constructions that save vague statutes from constitutional infirmity than to decline to enforce those statutes (originalist justices Clarence Thomas and Neil Gorsuch favor the latter). That is why I think the Court will probably approve the use of §1512(c)(2) to prosecute the blatantly criminal behavior of the rioters. But let’s try to think of this statute’s coverage as a spectrum: As conduct moves more into the range of indecorous yet constitutionally protected behavior (e.g., positing frivolous legal theories in a proceeding), and as the prosecution appears to be more a matter of imposing new standards of official conduct than of applying settled criminal-law principles, I believe the Court will uphold the Bill of Rights and torpedo prosecutorial creativity.

In other words, the Court’s decision to grant review of the Capitol-riot obstruction cases, announced shortly after the justices indicated that they are seriously considering Smith’s request for their early intervention in his prosecution of Trump, signals trouble for Smith. He is hoping to get the Court to narrowly consider and reject Trump’s claim of immunity from criminal prosecution. But he may get more intervention than he bargained for. The justices could see the immunity issue as a good reason to scrutinize what Trump is claiming immunity from — namely, the obstruction, fraud, and civil-rights charges Smith has brought.

One last thought, regarding the March 4 trial date that Judge Chutkan has ordered and that Smith is zealous to preserve — since the Biden Justice Department’s objective in this enterprise is to get the president’s Republican rival convicted of a felony prior to the election, in the heat of the campaign.

Full disclosure: I have long believed Trump is being denied due process. The prosecutor’s proposed schedule is driven by the political calendar, not law-enforcement concerns. The public does not have a right to a speedy trial — the defendant does, and that right is routinely waived, as Trump has waived it, if the case is complex and requires extensive preparation. The Biden Justice Department took nearly three years to charge Trump, even though the facts by then were well-established; the indictment was strategically timed so a trial could take place during the presidential campaign. Not only did Smith push to force Trump to trial in just a few months after Smith’s own investigators had taken years; the prosecutor indicted in Washington, D.C., only after locking Trump into yet another complex criminal trial in another district a thousand miles away (south Florida). As a result of the special counsel’s methodical plan, Trump must simultaneously prepare, during a presidential campaign, for two trials, each of which would last two months or more, in federal courts where criminal defendants are required to attend every day of the proceedings. It now seems unlikely that the Florida case’s May 20 trial date will hold, but if it did — i.e., if Smith’s plan were implemented — Trump would spend virtually every weekday from March through August 2024 in courtrooms standing trial.

There is no compelling law-enforcement rationale for this. Smith would present the same evidence and make the same legal arguments whenever the trials were scheduled. The schedule is dictated by politics, which prosecutors and courts purport to ignore. If it were happening to a Democrat rather than to Trump, the press would daily bewail the shredding of the Constitution.

So I am on record: I think that the election-interference charges are unworthy and that the way the case has been conducted is unfair. (By contrast, I believe Smith’s documents case in south Florida, which is based on Trump’s post-presidential misconduct, not his actions in office, is appropriate.) Take what follows, then, with whatever grain of salt you think it deserves.

How, at this point, can Judge Chutkan validly maintain the March 4 trial date? The two obstruction charges are by far the most serious ones in Smith’s indictment. Smith’s application of §1512(c)(2) to Trump is more questionable than the Justice Department’s application of it to the Capitol rioters. The Supreme Court, however, is unlikely to rule on the Capitol riot prosecutions until June. Any responsible lower court would take the high Court’s agreement to hear the cases as a signal that caution is warranted, and would want to have the benefit of the Court’s ruling and reasoning before proceeding. That would be true in any case, but it should be especially true in history’s first ever criminal prosecution of a former president and current presidential candidate.

Yes, I believe the case should not have been brought at all, and that it should be postponed until after the election — which would resolve the tension between (a) the court’s need to restrict Trump’s speech and movements for the sake of administering justice, (b) Trump’s right to seek office, and (c) the public’s interest in minimizing the burdens the judicial process imposes on the democratic electoral process. But even if you don’t agree, do you really believe the district court should proceed with a trial on March 4 when an issue central to the trial will not be decided by the Supreme Court until June?