By Aaron Blake / The Washington Post
Rep. Liz Cheney’s disclosures of intriguing Jan. 6 text messages between Mark Meadows and both Donald Trump Jr. and Fox News personalities are the big news in the committee’s investigation right now. But don’t lose sight of what Cheney, R-Wyo., said immediately after she read those texts aloud.
In summing up the texts, Cheney said, “Mr. Meadows’s testimony will bear on another key question before this committee: Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’s official proceeding to count electoral votes?”
A casual observer might have missed it, but what Cheney was doing here was pointing to a specific criminal statute — a felony, 18 U.S. Code § 1512 — that she suggests President Trump might have violated. And both its inclusion in her comments and the timing of it shouldn’t be lost on anyone. This was a Republican member of the committee floating a specific potential Trump crime that the committee apparently wants to drill down on; it also came shortly after a federal judge upheld the use of the statute in a key Jan. 6 case.
Cheney, on Tuesday morning at another hearing, cited the statute again; pretty much erasing any doubt about how deliberate this was.
Cheney’s comment matches the language of the statute. It states, “Whoever corruptly … 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.” That law defines an “official proceeding” as including “a proceeding before the Congress.”
It also comes after a notable development last week: A federal judge ruled that the law could be used to charge a Jan. 6 case; involving Capitol rioters, at least. The ruling was a win for the Justice Department, which has used the statute in more than 200 Jan. 6 cases, although defendants have been fighting it.
The judge, Dabney Friedrich, ruled that Congress’s counting of electoral votes — the business it was engaged in when Trump supporters overran the Capitol — qualifies as an “official proceeding” under the statute.
“The Joint Session thus has the trappings of a formal hearing before an official body,” Friedrich said. “There is a presiding officer, a process by which objections can be heard, debated, and ruled upon, and a decision — the certification of the results — that must be reached before the session can be adjourned. … Accordingly, the congressional certification at issue here is a ‘proceeding before the Congress.’”
Friedrich’s ruling comes after other judges have sympathized with defendants’ arguments that the law is inapplicable to their cases — because Congress’s actions didn’t meet the definition of an official proceeding — or that the law itself is unconstitutionally vague.
In September, U.S. District Judge Amit Mehta said, “Scaring the daylights out of everyone in the House or Senate … to me is very different than destroying evidence or intimidating witnesses.”
Another judge noted that the Supreme Court in 2015 rejected a broad reading of a related law in a case that involved a fisherman throwing an undersized fish overboard to thwart wildlife inspectors.
As The Post’s Spencer S. Hsu reported on Mehta’s comments, the law stems from a rewrite of obstruction statutes after the Enron scandal that is contentious to this day:
“The challenges rejoin a long-standing debate over what Congress meant when it overhauled an obstruction-of-justice statute in 2002, when as part of the Sarbanes-Oxley corporate responsibility act it broadly expanded a provision to cover ‘whoever corruptly … obstructs, influences, or impedes any official proceeding.’
“The Justice Department has argued that Congress intended a broad ‘catchall’ provision for obstructive acts, passing Sarbanes-Oxley after a corporate fraud crisis wiped out hundreds of billions of dollars of shareholder value, including the early-2000s collapse of Enron Corp. and accounting giant Arthur Andersen.
“Congress’ whole point in enacting such general clauses is to cover ‘matters not specifically contemplated,’ because lawmakers do ‘not know what inventive criminal minds’ might come up with in the future, Assistant U.S. Attorney Jeffrey S. Nestler said in the hearing Wednesday.
“But some legal scholars question whether the expansion applies only to financial fraud or to traditional obstruction-of-justice crimes such as destroying documents.”
Thus far, there has been little evidence that the Jan. 6 committee is drilling down on a specific potential crime by Trump. But Cheney’s floating of one on Monday night — so soon after a court case legitimized the use of the statute in Jan. 6 cases — doesn’t seem like a coincidence.
The question, then, with Trump is whether his “action or inaction” regarding the Capitol riot — i.e. inciting the riot and/or declining to immediately call off his supporters when they did riot — was corrupt. It also hinges on whether it impeded or was intended to impede the counting of electoral votes, provided other judges agree with Friedrich’s reading that Congress’s actions on Jan. 6 qualify as an official proceeding.
It’s worth healthy skepticism that this will ever ultimately result in criminal charges for Trump, and using this particular statute is somewhat fraught, for the reasons laid out above. But the fact that a key Jan. 6 committee member is now floating this particular illegal act should serve notice about the direction the committee is heading.
Aaron Blake is senior political reporter, writing for The Fix. A Minnesota native, he has also written about politics for the Minneapolis Star Tribune and The Hill newspaper.