Long before the prosecutors investigating Donald J. Trump’s efforts to overturn the 2020 election laid out three laws for him that could be the basis for an indictment, one of the statutes, covering obstruction of official proceedings, had already been used against — and challenged. by – dozens of rioters who took part in the storming of the Capitol.

The legal questions about applying the obstruction law to the attack on January 6, 2021 have spawned a pair of federal appeals courts — and could even end up before the Supreme Court. But while it might seem risky for the special counsel, Jack Smith, to include the obstruction count in an indictment before the charges against it are resolved, the way the law is written could make it almost uniquely suited to impeach Mr. Trump.

The count—formally known in the criminal code as 18 USC 1512(c)(2)—makes it a felony to “corruptly” obstruct, obstruct or obstruct any official government proceeding, and carries a maximum penalty of 20 years in prison.

In more than 300 Jan. 6 riot cases, prosecutors used the law to describe the central event that day: the disruption of the voter testimony that took place inside the Capitol during a joint session of Congress.

Generally, defendants have been charged with the obstruction count when prosecutors believe they have evidence that their actions on Jan. 6 played some role in stopping the certification process or in chasing lawmakers away from their duties. But as soon as the charge began being used in Capitol riot cases, defense lawyers began arguing that the government was stretching the statute far beyond its intended scope.

In its plain text, the measure apparently has nothing to do with mafias or riots. It was passed into law in 2002 as part of the Sarbanes-Oxley Act, which sought to curtail corporate wrongdoing, and was initially intended to prohibit things like shredding documents or tampering with witnesses in congressional investigations.

In April, the US Court of Appeals for the District of Columbia upheld the use of the obstruction count, even while acknowledging that it had never been applied in the way it was in the January 6 cases.

The decision by the three-judge panel — which included two Trump appointees — largely upheld only one of the complaints against the statute. The panel said that any obstruction by rioters at the Capitol did not have to relate exclusively to the law’s original prohibitions against tampering with witnesses or destroying documents.

But the panel reserved judgment on a separate challenge to the law, one involving the definition of the word “corruptly”. That issue could relate more directly to Mr. Trump if he were charged with the count.

In its arguments to the appeals court, the government said that acting corruptly should be broadly interpreted to include all kinds of illegal behavior, such as destroying government property or attacking police officers. The defense argued for a much narrower interpretation, seeking to define the term as acting illegally to procure something to directly benefit oneself.

This challenge is at the center of the second appeals court in Washington and could be decided at any time. It could also affect how the law applies to Mr. Trump: Unlike many of the rioters on the ground, who had little to gain for themselves by halting the certification process on Jan. 6, Mr. Trump stood to gain something of great personal worth, which day: victory in the election.

While it remains unknown how Mr. Smith might frame a charge of obstruction, he could choose to use it to describe the pressure campaign that Mr. Trump and some of his allies have waged against Vice President Mike Pence. The president and lawyers close to him such as John Eastman sought to embolden Mr. Pence to use his role in overseeing the Jan. 6 election certification to unilaterally throw the race to Mr. Trump.

Last year, the House select committee investigation on January 6 urged that Mr. Trump be charged with obstruction of official proceedings among other counts, including conspiracy to defraud the United States and incitement to sedition. But long before those recommendations were made, judges and lawyers involved in the Jan. 6 criminal cases were investigating whether Mr. Trump’s conduct — specifically his attempts to pressure Mr. Pence — violated the obstruction count.

In November 2021, for example, at an early hearing debating the validity of the indictment, James Pearce, a prosecutor who has handled many of the Justice Department’s thorniest Capitol riot law cases, argued in court that if someone encouraged Mr. Pence to break the law. law on January 6, it could qualify as a corrupt act of obstruction. Although Mr. Pearce never mentioned Mr. Trump by name, it was clear that he was discussing the former president’s attempts to get Mr. Pence to do his bidding that day.

“One of the definitions of ‘corruptly’ is trying to get someone to breach a legal duty,” Mr Pearce said.

The investigation into Mr. Smith’s election interference is not the first time prosecutors have used 1512(c)(2) as the basis for examining Mr. Trump. The provision was also instrumental in the investigation by Robert S. Mueller III, the special counsel examining whether Mr. Trump obstructed efforts to seek ties between Russia and his 2016 presidential campaign.

In 2018, William P. Barr, before he got the job as attorney general from Mr. Trump, wrote memo to key officials in the Ministry of Justice complaining that Mr. Mueller’s use of the obstruction count was “based on a novel and legally untenable reading of the law.”

Mr. Mueller, Mr. Barr wrote, is “proposing an unprecedented expansion of obstruction laws” to find a way to charge Mr. Trump for actions he had the constitutional power to take. (Mr. Mueller never sought to indict Mr. Trump.)

Some legal experts said Mr. Trump could launch an attack on the obstruction charge if it is brought by Mr. Smith, arguing that he genuinely believed he had been robbed of a victory by fraud in the election and, therefore , could not be accused of having acted corruptly.

But last week, a senior federal judge in Washington, Royce C. Lamberth, found a high-profile Jan. 6 rioter guilty on 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 teacher from Southern California — did not mention Mr. Trump’s possible criminal exposure, but it could lay a legal basis to refute any attempts by the former president. to get around the law’s references to “corrupt”.

“Even if Mr. Hostetter truly believed that the election was stolen and that public officials had committed treason, that does not change the fact that he acted corruptly with knowledge of wrongdoing,” Judge Lamberth wrote. “Belief that your actions serve a greater good does not negate awareness of wrongdoing.”

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