The Latest Theories of Criminally Prosecuting Donald Trump Remain Flimsy By Dan McLaughlin
No, it is still not likely that Donald Trump can be indicted for January 6.
L ike Captain Ahab, the full-time Trump haters have fixated yet again on an idea for criminally prosecuting our 45th president. By “full-time Trump haters” I do not mean those of us who have remained consistently critical of Donald Trump, want him out of our politics, and have called for him to be held properly accountable, but rather the left-leaning Resistance and the former conservatives who have let the Never Trump slogan consume their entire political identity. Neither group can let Trump go, even for a little while, even at the cost of neglecting many of the other serious domestic and foreign issues facing the nation.
The obsessives have yet again been issuing flurries of “the walls are closing in” tweets and cable-news segments eagerly anticipating a criminal indictment of Trump. But tweets are no substitute for reading the law.
In a televised hearing on Monday, the House Select Committee to Investigate the January 6th Attack on the U.S. Capitol was reviewing a set of text messages produced by White House chief of staff Mark Meadows, mainly detailing his communications on January 6 with people outside the Trump administration. The text messages underline the case for Trump’s political and moral responsibility for the January 6 Capitol riot. But where is the crime?
Liz Cheney, homing in on Trump’s failure during the critical hours to talk down the rioters or take more vigorous action to enforce the law, asked:
These texts leave no doubt: The White House knew exactly what was happening at the Capitol. Members of Congress, the press, and others wrote to Mark Meadows as the attack was under way. . . . Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’s proceedings?
If it sounds as if Cheney was quoting or paraphrasing a legal standard, it’s because she was. A number of commentators, including Harvard Law professor Lawrence Tribe, CNN legal analyst Elie Honig, and Daily Beast political-investigations reporter Jose Pagiery, have suggested that Cheney was making a case for prosecuting Trump under 18 U.S.C. § 1505.
If so, that’s a very difficult charge to make stick. There are two problems: It’s unclear whether that charge even applies and, if it did, it’s unclear whether Trump did anything that could violate it.
First, consider what Section 1505 covers. I have previously discussed the use against January 6 defendants of 18 U.S.C. § 1512(c)(2). Section 1512(c)(2) applies to anyone who “corruptly obstructs, influences, or impedes any official proceeding, or attempts to do so.” (It is a second subpart of Section 1512(c); subsection (c)(1) applies to anyone who “corruptly 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”; subsection (c)(2) begins with “otherwise,” suggesting its connection to subsection (c)(1)). The key phrase that determines when Section 1512(c)(2) applies is “official proceeding.” Section 1515(1), the definitional portion of the same statute, tells us:
As used in sections 1512 and 1513 of this title and in this section . . . the term “official proceeding” means—
(A) a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury;
(B) a proceeding before the Congress;
(C) a proceeding before a Federal Government agency which is authorized by law; or
(D) a proceeding involving the business of insurance whose activities affect interstate commerce before any insurance regulatory official or agency or any agent or examiner appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose activities affect interstate commerce.
Section 1512 was added to the criminal code in 2002 as part of Sarbanes–Oxley Act, and its main thrust is to prevent witness tampering, document destruction, and other forms of obstruction of investigations and court cases. But Section 1515(1)(B) could not more clearly and explicitly extend to “a proceeding before the Congress,” and the theory of the January 6 prosecutors is that this includes the joint session of Congress to count the electoral votes. This is, obviously, a question that’s never been previously tested in the courts, given that Congress meets only once every four years for this purpose, and nobody had ever been charged with disrupting the proceedings until this year.
What, then, is “a proceeding before the Congress”? It is certainly arguable that not everything that happens in Congress would count. Broadly speaking, there are nine sorts of business that Congress conducts:
- Draft, debate, and vote on legislation and constitutional amendments, a process including legislative markup hearings.
- Hold hearings to investigate the need for future legislation.
- Pass a budget to fund the executive and judicial branches, as well as Congress itself.
- Hold hearings to oversee the executive and judicial branches, which are funded by Congress.
- Confirm or reject executive and judicial nominees and treaties, a process that includes holding hearings to consider those nominees and treaties.
- Impeach and remove executive and judicial officers, a process that includes hearings and trial.
- Vote to organize Congress itself, including setting congressional rules, electing the speaker of the House and other officers, disciplining members, and adjudicating election disputes.
- The determination of the presidential and vice-presidential election, the modern process for which is set forth in the Twelfth and 20th Amendments.
- Receive the president’s message on the state of the union, which may be delivered in writing or by a speech to a joint session.
It is the eighth of these that is at issue. To the extent that there is any ambiguity here, it would turn on the phrase “proceeding before Congress,” which could be read to focus on quasi-judicial functions in which witnesses appear before Congress (e.g., holding hearings or conducting impeachment trials) rather than purely legislative functions such as votes on bills, which might be said to be proceedings of Congress.
But even under that reading, the Twelfth Amendment process would naturally be treated as a proceeding before Congress. The two Houses are required to appear together rather than in their customary separate proceedings under each House’s own rules; the president of the Senate — the vice president, if one is in office — is required to attend and preside: “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.”
The 2020 election and the January 6 riot involved a whole controversy over the division of the roles of the vice president and the House and Senate in deciding which votes to count, but under any reading of the Twelfth Amendment, the vice president is the presiding officer reading off the actual count, and the House and Senate are present in order to hold votes to resolve the selection of the president and vice president. The disputes that day over the certification of electors were enmeshed in factual controversies that had played out in the courts. Even if Section 1512(c)(2) might be read to exclude some legislative or internal business of Congress, the proceeding to finally resolve the presidential election would naturally be read to be a proceeding before Congress.
I rehash some of that background here in order to contrast Section 1512 with Section 1505. That section is titled “Obstruction of proceedings before departments, agencies, and committees,” and its second paragraph criminalizes the following:
Whoever corruptly, or by threats or force, or by any threatening letter or communication influences, obstructs, or impedes or endeavors to influence, obstruct, or impede the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States, or the due and proper exercise of the power of inquiry under which any inquiry or investigation is being had by either House, or any committee of either House or any joint committee of the Congress . . .
The key provisions of Section 1505 were enacted in 1940, long before Sarbanes–Oxley. It does not use the “official proceeding” language, but instead uses the same terms as 2 U.S.C. § 192, the contempt of Congress statute. Like Section 1512, it discusses congressional proceedings alongside agency proceedings, but the language is different. It covers “any inquiry or investigation . . . being had by either House, or any committee of either House.” That rather clearly targets hearings and investigations by each House operating separately — a different, narrower subset of congressional activities distinct from a joint session to count electoral votes. It goes on to cover “any joint committee of the Congress” — pointedly, not joint sessions, only joint committees.
The courts have rejected technical readings of these definitions in favor of their natural, common use. The Fifth Circuit, in United States v. Rainey (2014), held that the statute governs congressional subcommittees. The Fourth Circuit, in United States v. Mitchell (1989), held that it did not matter whether a committee followed all of its own rules to the letter. But because a joint session to count electoral votes is neither an “inquiry or investigation . . . by either House” nor a “joint committee,” it is more challenging to apply Section 1505 in this context than Section 1512(c)(2).
Assume, however, that Trump could be criminally charged under either statute. That raises the second question: proving that he did something that “influences, obstructs, or impedes or endeavors to influence, obstruct, or impede” (Section 1505) or “obstructs, influences, or impedes any official proceeding, or attempts to do so” (Section 1512). As I explained back in January in the context of the 14th Amendment’s sanctions on insurrectionists, there is a crucial difference in the law between engaging in an insurrection and simply saying things that encouraged people to engage in one. The criminal-law standards for incitement are very demanding, and rightly so in a society that values robust political speech. If we apply Edmund Burke’s dictum that impeachments should be “tried before Statesmen and by Statesmen, upon solid principles of State morality,” then Trump is rightly charged with being politically and morally responsible for how his multipart course of conduct before and on January 6 led to what happened that day. But that course of conduct is not criminal incitement.
What about obstructing, influencing, or impeding the joint session to count the electoral votes? At some point, charging a political leader with trying to influence a political process creates some fairly grave constitutional issues. The same is true more broadly for January 6 protesters who merely tried to persuade Congress, rather than those who took it upon themselves to stop the count by entering the building. The constitutional concerns about the rights of speech and petition are more easily resolved when Section 1512 is used against people who actually used force or illegally breached the building and caused the session to halt. There is always some legal line between speech and physical force or physical obstruction.
Cheney is driving at two failings by Trump. One is his failure to restrain the mob by failing to talk them out of the Capitol. But that is two steps removed from the rioters themselves — it is speech rather than action, and it is failure to speak rather than speaking. The other is potential dereliction of duty in, say, failing to deploy the National Guard. But that is fundamentally a failure of presidential duty rather than a crime, even aside from the ability of Trump to argue that he had adequately delegated authority to deploy the Guard as needed and had legitimate political considerations — i.e., conflict with the mayor of D.C. — to manage in doing so.
Now, the courts in construing Section 1505 and 1512 have emphasized that they can be used against a broad variety of methods of impeding proceedings. The core of the statute is not the means but the corrupt intent to affect a proceeding and the nexus between that intent and the foreseeability that the defendant’s conduct would bring about that result. So, it is possible that as-yet-undiscovered evidence could make this a closer case if Trump was found to have engaged in something that looks more like hands-on direction of the riot itself. But we should tread very carefully in using creative, untested readings of the law to bring the first criminal charges in our nation’s history against one of our presidents for his conduct in office. The smoking gun would have to be very, very clear in order to justify that maneuver. And while stranger things have happened, it seems unlikely to me that Trump was ever quite imprudent enough in safeguarding his own personal interests to leave that kind of trail. The Trump we know from long public experience prefers to use ambiguity and a certain amount of deniability to create unstable situations that give him maximum room to negotiate.
It is yet possible that Trump might face a different kind of criminal liability more within the heartland of these statutes. The House Select Committee has voted to hold Meadows in contempt, and Steve Bannon has already been indicted for contempt. Meadows in particular initially complied with some of the committee’s requests, then shut down. Trump’s role in encouraging resistance to the committee’s investigation could, potentially, lead him into legal jeopardy. That raises its own set of issues and debates.
But this much is clear: As of now, given the evidence we have and the evidence we might foreseeably expect to find, it would be very difficult to make a criminal charge stand up under Section 1505, Section 1512, or any similar provision of the federal criminal code against Donald Trump for his actions on January 6 or his actions contributing to the events of that day.
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