Was Merrick Garland’s Approach Correct All Along?

Attorney General Merrick Garland. Photo courtesy of CNN.

I’m going to say something that might make me a bit unpopular. From where I sit, Attorney General Merrick Garland has taken a logical and reasonable legal path all along.

How can I say this, though, given that January 6, 2021 is now more than two and a half years behind us, and ex-president Trump was only just this month charged with federal crimes such as obstruction of Congress and conspiracy?

It comes down to how Garland and the Justice Department carefully and methodically laid a legal pathway for charges against Trump to land, rather than get thrown out of court or held in doubt till the end, where they might be far more vulnerable on appeal. Let me walk us through my thinking on this. And I’ll try not to sound like an apologist for prosecutorial delay!

The first set of defendants

Does anyone remember when the very first set of charges against the January 6 insurrectionists and rioters landed? I had to go look it up. Garland took office in March of 2021, and by May 13 of that year, just two months later, the Washington Post reported that 411 suspects had been swept up “in what federal officials have called an unprecedented domestic attack on a branch of the U.S. government.” That’s a lot of arrests, but notice the wording, which was no accident: The attack was “unprecedented,” and it was “on a branch of the U.S. government.”

“I have not seen a more dangerous threat to democracy than the invasion of the Capitol,” Garland told senators in a hearing that week. He labeled the assault “an attempt to interfere with the fundamental element of our democracy, a peaceful transfer of power.”

Again, words matter a great deal, and Garland was telling us back then what he was already thinking, namely that his Department planned to use the obstruction of justice laws—specifically, obstruction of an official proceeding—to prosecute many of the January 6 defendants.

The Department by that point had filed charges against 195 defendants under that specific law. But there was a big and looming problem: Because the attack was both unprecedented and involved an attack on Congress, the law had never really been tested in the courts to see if they could be applied to these specific circumstances.

The Obstruction of an Official Proceeding statute

The statute that 195 defendant rioters had been charged with is 18 U.S.C. 1512(c). That part of the obstruction laws deals with “corruptly” interfering with an “official proceeding” and carries with it a hefty penalty of up to 20 years in prison. Here’s the text for reference:

(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. 

Looking more closely at the statute, it’s part (c)(2) that matters most, both in the case of the rioters and, possibly, with respect to Trump and his cronies. But breaking this part down into its pieces, several issues immediately arise.

What does “corruptly” mean here?

You’d think that someone by now would have put a solid definition on the term “corruptly.” But most case law on the meaning of that word has to do with tax law, not an attempt to stop an electoral count. 

For example, does “corruptly” have to mean “unlawful”? Does the corrupt act have to be for the benefit of the person actually causing the obstruct, or could it apply to anything that benefits someone else, like Trump? And could a defendant who sincerely believed he was acting to prevent an election from being stolen be said to have the requisite criminal intent under this statute?

That last one, when you think about it, is exactly what Trump is now arguing as a primary line of defense.

The Justice Department didn’t have a clear answer to any of these questions from the courts back in 2021. So proceeding early with this statute against someone like Trump would have been a very dicey proposition had prosecutors not first laid a solid legal foundation.

What does “otherwise” include here?

If you look at the first phrase in part (2), it begins with “otherwise.” That word is doing a lot of heavy lifting, because there’s no evidence the January 6 defendants altered, destroyed, mutilated or concealed records to obstruct an official proceeding. The “otherwise” is a catch-all term.

That’s a lot to hang your legal hat on, especially if down the road you’re thinking about charging the former president with the same crime. Some have argued that this law was written to cover tampering with or destroying documents, and using “otherwise” to mean “anything else you can think of” makes the section overly broad—a potential death sentence for a statute.

Defendants could, and eventually did, argue that “otherwise” is so vague that it could sweep up legitimate conduct intended to influence a proceeding, such as lobbying or peaceful protest. Throw the whole law out, they urged, because it could become a cudgel to suppress legitimate free speech.

I could easily see a Supreme Court split on this question, if any justices are inclined to let Trump off the hook. 

(On the other hand, there is a good argument that Trump’s and his co-conspirators’ use of fake electoral certificates is a way to “otherwise” obstruct an official proceeding by way of fraudulent substitution of an actual document. That is also a legally untested claim, however.)

Was this an “official proceeding” under the law?

There’s also the somewhat easier question of whether the counting of the electoral votes was an “official proceeding” covered by this law. It sure sounds like one, but there wasn’t case law to support that point back in 2021.

Defendants would argue that “official proceedings” need to come with some kind of adjudication or fact-finding, like a trial would, while the January 6 electoral count was largely ceremonial in nature.

This is a stretch, but it is actually what some defendants argued.

So, what should prosecutors have done here?

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: 

1) resolving what “corruptly” means here, 

2) 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 

3) 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.

The first big appeal 

The first case to reach the appellate court on these questions was United States v. Fischer, an opinion that finally issued on April 7, 2023. And yes, that was just four months ago, for all those complaining of Department inaction. Courts move slowly, which is why prosecutors getting blamed for delay often feels unfair to me. 

Most of the federal courts that were faced with the question of the legality of 1512(c)(2) as applied to the January 6 defendants agreed with the Justice Department, ruling consistently that the statute was valid and properly applied. But then one judge—a Trump appointee named Carl Nichols, disagreed, setting up a split of opinion among the district courts. 

Judge Nichols found that part two of the statute (the “otherwise” section) was limited by part one. By this he meant that the statute requires the defendant to have taken some action with respect to an actual document or record. And that didn’t happen in Fischer’s case.

The Justice Department appealed Nichols’s ruling, which consolidated three appeals along the same lines, and it reversed him in a 2-1 decision. Judge Florence Pan, a Biden appointee writing for the majority, found the statute unambiguous because “otherwise” plainly means “in a different manner.” In other words, it covers everything else and was written that way on purpose. She also agreed that the Electoral Count by Congress was an “official proceeding” covered by the Act.

What wasn’t before the panel, Judge Pan noted, was the meaning of the word “corruptly.” So she didn’t address that issue, other than to note that storming the Capitol and assaulting police would qualify as acting “corruptly” under almost any reading of the word.

Writing separately in concurrence, Judge Justin Walker, appointed in 2020 by then-president Trump, found that the appeal couldn’t be resolved without a ruling on the meaning of the word “corruptly.” He found that the government must prove that the defendant acted “with an intent to procure an unlawful benefit either for himself or some other person”—a standard borrowed from the Supreme Court’s cases on tax crimes. Pay attention here, because this “unlawful benefit” standard is a higher bar than the Department would like to see imposed at Trump’s trial.

The dissenting opinion by Judge Gregory Katsas, appointed by Trump in 2017, argued that 1512(c)(2) should be limited to acts that actually impair the integrity of availability of evidence in a proceeding, which was the context for the original obstruction statute as written. The law, he said, was overly broad as written.

But that was the dissent. Armed with an opinion backed by two panelists in the majority, including one Trump appointee, the Justice Department can now cite controlling law for any district court in the circuit—including the one in which Judge Tanya Chutkan sits. That case law holds that the Obstruction of an Official Proceeding statute is valid, and not vague or overly broad as applied to January 6 defendants. Those defendants would include ex-president Trump.

I want to emphasize that the Justice Department didn’t even have this important piece of the puzzle until April 7, 2023. But it is a crucial one, arrived at after scores of tests by defendants in the D.C. district courts.

The second big test before the D.C. Court of Appeals

So, what about that pesky term, “corruptly”? The one Judge Pan punted on, but Judge Walker dove into? Is that finally being resolved?

It turns out that yes, it is, but we don’t yet have a decision. The matter was placed squarely before the D.C. Court of Appeals on May 11, 2023, just three months ago, at a hearing in the case of United States v. Robertson.

The appeal involves a jury instruction that the trial court gave:

To act corruptly the defendant must use unlawful means, or act with an unlawful purpose, or both. The defendant must also act with consciousness of wrongdoing. Consciousness of wrongdoing means with an understanding or awareness that what the person is doing is wrong.

Robertson is arguing on appeal that Judge Walker’s stricter standard for “corruptly” should apply, and that therefore the government has to prove that the defendants acted “knowingly and dishonestly” with the intent to obtain a gain for himself or another.

The government prefers the jury instruction given (which it probably drafted in whole or in part) and argued that it should apply and the conviction be upheld. The Department argued that Judge Walker’s stricter interpretation came from tax cases where there’s a higher level of intent required because of how complicated the tax laws are.

So, what are examples of corrupt intent that might help clarify things for everyone? 

If I donate to a politician, that’s lawful. But if I ask for a specific favor in return? That’s corrupt. It’s bribery. 

Similarly, if I argue a legal position—say, that Mike Pence can overturn the election on his own—that’s lawful. But if he refuses and I keep pressuring him and badgering him, even though I know I’m in the wrong, and then I even sic an angry mob on him, that’s corrupt. It’s intimidation and an attempt to obstruct Congress.

I’m paying close attention to the notion that the use of “unlawful means” get us halfway there. Trump and his co-conspirators, for example, used unlawful means by having fake elector certificates submitted. He also used unlawful means by asking Georgia Secretary of State Brad Raffensperger to “find” 11,780 votes so he could flip the state back to Trump.

The stakes are very high here, given the facts around Trump’s case. Proving Trump acted knowingly and dishonestly is much harder than proving that he used unlawful means or had an unlawful purpose and was generally aware that what he was doing was wrong.

A decision on the legal meaning of the word “corruptly” could come out any day, or it could take more time. Judge Pan, by the way, is again on the panel. The other two panelists are Judge Cornelia Pillard (an Obama appointee) and Judge Karen LeCraft Henderson (a Bush appointee).

Other important legal questions that Garland got settled

Two of Trump’s main lines of attack against the indictment are already clear. He means to file a motion for a change of venue, arguing that he can’t get a fair trial in D.C. And he also intends to argue that he had a sincere belief that the election was stolen, and therefore he can’t have acted with the requisite criminal intent. 

But thanks to the 1,000 cases that came before Trump’s, courts in the D.C. Circuit have already considered and answered these questions in the context of other January 6 defendants. 

It’s unsurprising that many January defendants argued for a change of venue, given that they believed a D.C. jury might be hostile to their acts of vandalism, violence and insurrection. It’s also unsurprising that none of them has succeeded, even before Trump-appointed judges. When faced with a similar motion, Judge Chutkan already found against one defendant who made a request last year for a change of venue out of D.C. on the ground that it’s too liberal a place:

Jurors’ political leanings are not, by themselves, evidence that those jurors cannot fairly and impartially consider the evidence presented and apply the law as instructed by the court.

Good luck getting her to change her own mind.

With respect to the “sincere belief” defense, that got tossed recently by a federal district court in D.C., too, giving prosecutors something concrete to bat down Trump’s likely similar argument. In July of this year, as the New York Times reported, senior Judge Royce C. Lamberth found a January 6 defendant named Alan Hostetter guilty, despite his repeated claims that he believed the election had been stolen. 

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

There’s that phrase twice again, “consciousness of wrongdoing”—the standard the government wants applied to the definition of “corruptly.”

Sewing up loose legal ends

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. 

And for all that legwork by Garland and his Department of Justice, forging a clear legal path to prosecute Trump under the obstruction statute, I am both grateful and impressed.