For the Jan 6th prosecutions? Sure. For the rest of the prosecutions that should have been done for all the crimes he committed during his campaign and presidency including charges from the first...
For the Jan 6th prosecutions? Sure.
For the rest of the prosecutions that should have been done for all the crimes he committed during his campaign and presidency including charges from the first impeachment? Hell no.
As the above discussion shows, the contours and interpretation of the Obstruction of an Official Proceeding statute remained quite unsettled as of mid-2021. So what should the Justice Department have done?
Given the unprecedented nature of the attack and the uncertain scope and applicability of the statute, if I were Garland, I would have tasked the Department with creating a whole lot of legal support for the broad application of this law. That would have included the following:
resolving what “corruptly” means here,
establishing that “otherwise” means it can apply even if there were no records or documents destroyed for the purpose of obstructing an official proceeding, and
clarifying that an “official proceeding” actually included Congress’s electoral count on January 6, 2021.
And that’s exactly what the Justice Department has been doing over the past two years, appearing before multiple district courts in the D.C. Circuit and before the D.C. Circuit Court of Appeals.
And its work is very nearly done. Two cases in particular are of primary importance in the quest to clarify and apply 18 U.S.C. 1512(c)(2) to the events of January 6, including what Trump is accused of doing and conspiring to do.
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Seen from a broad perspective, the over 1,000 January 6 cases filed by the Justice Department against the rioters, insurrectionists and seditious conspirators have now yielded important precedents that can be applied to the charges and the case against Donald J. Trump. Without this important groundwork, there would be considerably more legal risks in the application of two of the primary counts in the indictment: obstruction or attempted obstruction of an official proceeding, and conspiracy to obstruct an official proceeding.
Those legal risks would have certainly been targeted and appealed by Trump’s attorneys, putting a very big question mark over the finality of any conviction. As things stand, there remains some legal uncertainty—such as which jury instruction for “corruptly” to apply here—but they likely will be resolved, perhaps even by the Supreme Court, long before the jury meets to deliberate Trump’s guilt.
For the Jan 6th prosecutions? Sure.
For the rest of the prosecutions that should have been done for all the crimes he committed during his campaign and presidency including charges from the first impeachment? Hell no.
From the blog post:
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