Special prosecutor Jack Smith's 45-page indictment of former President Donald Trump includes a felony charge of "obstruction of an official proceeding."
A petition pending before the Supreme Court seeks to overturn the application of that law , 1512(c)(2), in Jan. 6 cases.
Trump and more than 300 individuals have been indicted on that count for their alleged role in delaying the certification of the 2020 election. Dozens have pleaded guilty or been found guilty at trial.
"Defendants include protesters who were not in Washington or never entered the building," investigative journalist Julie Kelly noted in an Oct. 13 analysis. "Trump, of course, never set foot on Capitol Hill — but convictions nonetheless often result in excessive prison sentences."
Jacob Chansley, the so-called “QAnon Shaman,” finally pleaded guilty to the obstruction charge. He spent 300 days in solitary confinement and was denied release by a federal judge, who then sentenced him to 41 months in prison.
The obstruction charge, Kelly noted, "represents the heart of DOJ’s ongoing 'Capitol Breach' prosecution — enabling the government to turn otherwise misdemeanor cases into felony ones — the law never was intended to criminalize political dissent."
Passed as part of the 2002 Sarbanes-Oxley Act in the aftermath of the Enron scandal, 1512(c)(2) reads as follows:
(c) Whoever corruptly— (1) alters, destroys, 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; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be fined under this title or imprisoned not more than 20 years, or both.All judges have upheld the Department of Justice's use of the obstruction felony, with the exception of Judge Carl J. Nichols.
Nichols, a Trump appointee, granted motions to dismiss for three defendants also charged with assaulting police by concluding the government’s interpretation of the language was too broad and contrary to the law’s original intent.
In his March 2022 order dismissing the count against January 6 defendant Garret Miller, who pleaded guilty to the other counts against him, Nichols wrote that “1512(c)(2)...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.”
"After prosecutors asked Nichols to reconsider — only to receive the same response — the government appealed his decision," Kelly noted.
Nicholas Smith, a New York defense attorney who represents several J6 defendants including Garret Miller, filed the petition before the Supreme Court. (Norm Pattis, a defense attorney representing Jacob Lang, one of the three defendants involved in Nichols’ decision, also has filed a petition before the high court.)
Smith is asking the justices to review the circuit court’s “deeply divided triad of opinions” to determine whether 1512 (c) “cover[s] only acts that affect the integrity or availability of evidence, or whether they criminalize advocacy, lobbying and protest.”
“Adding to the complication, both the concurring and dissenting opinions agreed that the government’s novel construction of Section 1512(c)(2) in the January 6 cases would create a breathtakingly broad, vague and unconstitutional provision that trespasses on core First Amendment rights, including the fundamental right to petition the government for a redress of grievances,” Smith wrote.
U.S. Solicitor General Elizabeth Prelogar has until the end of the month to respond, meaning the court could decide in the next few weeks to grant the petition. (Only four justices need to agree.) The website SCOTUSblog recently listed Smith’s case as one to watch.
Kelly added:
"Which brings us back to the other Smith. If the court signals an interest in taking up the matter, Trump’s lawyers will undoubtedly ask Judge Chutkan to dismiss the count against the former president. (They probably will regardless but a pending hearing before the nation’s highest court offers more leverage.) If she refuses to dismiss the count, Smith, who already has a spotty record of prosecutorial success, will have to decide whether to take a risk and proceed with prosecuting Trump on a charge with such a dubious legal basis.
"Additionally, reverberations would extend beyond the Special Counsel’s office. What if the Supreme Court ultimately overturns the appellate court and rules that DOJ inappropriately used 1512(c)(2) in more than 300 cases? What about the men and women considered convicted felons on that count alone, or those who languished in prison under pretrial detention orders awaiting trial? Or the defendants currently sitting in jail?"
