Untested Legal Imagination’s the Mother of Trump and Jan. 6 Prosecutions

Donald Trump doesn’t know Thomas Robertson. But the former president’s fate appears inextricably tied to that of the former Army Ranger, who was convicted last year for his involvement in the Jan. 6, 2021 protest at the U.S. Capitol.

That’s because the prosecutions of Trump and his supporters, including Robertson, have often depended on reimagining the law in novel ways.

To advance the narrative that Trump colluded with Russia, for example, the Department of Justice seized on the little-used Foreign Agents Registration Act to justify probes and wiretaps of Trump allies. In the Georgia election fraud case against Trump and numerous campaign advisers, Fulton County District Attorney Fani Willis is using a law intended to combat organized crime, the Racketeer Influenced and Corrupt Organization (RICO) Act, in what even her supporters describe as a stretch.

In Washington, D.C., prosecutors are using a financial crimes statute passed by Congress in 2002 in response to the Enron scandal to bring felony charges against hundreds of Jan. 6 defendants, including Trump and Robertson. Lawyers for both and for other Jan. 6 defendants argue the law is being misapplied. The controversy could soon wind up before the Supreme Court.

Defense attorneys say the government is using the power of law enforcement to misinterpret, and even weaponize, nebulous language in the legal code.

In three separate motions filed on Oct. 23, Trump’s lawyers repeatedly raised objections based on the “vagueness” factor of the four counts in Special Counsel Jack Smith’s Jan. 6 criminal indictment against Trump. Those four charges are: conspiracy to defraud the United States, conspiracy to obstruct, conspiracy against rights, and obstruction of an official proceeding.

“President Trump’s alleged conduct — publicly and politically disputing the outcome of the election, attempting to convince Congress to act, and allegedly organizing alternate slates of electors — falls outside the plain language of the charged statutes,” John Lauro, Trump’s lead attorney in the Jan. 6 case, wrote in a motion to dismiss the charges.

One of the key statutes in question is 18 U.S. Code § 1512(c)(2), part of the 2002 Sarbanes-Oxley Act passed by Congress to prevent fraudulent financial reporting by corporations. The statute was meant to close a loophole in other obstruction laws related to the destruction of evidence, but left open to interpretation the terms “corruptly” and “official proceeding” in the following passage – to the point where, defense lawyers claim, it can be used to criminalize political activity. The passage reads:

(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.

DOJ’s legal basis rests on the argument that the Joint Session of Congress held on Jan. 6 to debate and certify the 2020 election was an “official proceeding,” as opposed to a ceremonial gathering. Those who interrupted Congress, prompting a six-hour delay, or planned to disrupt it, committed that particular obstruction felony, prosecutors contend.

Federal prosecutors so far have charged more than 300 Jan. 6 defendants with obstruction under that statute. In August, Smith’s office handed down a 45-page indictment against Trump, claiming his attempts to persuade Vice President Mike Pence to reject some electoral college votes and organize alternate slates of electors, among other acts, also represented an attempt to obstruct the certification of the 2020 election.

Smith’s indictment is hardly the first time the DOJ sought to nab Trump on the obstruction count. It represents the culmination of a years-long effort dating back to 2017, when Special Counsel Robert Mueller investigated Trump for violating 1512(c)(2) as part of his probe into Russia’s role in the 2016 election.

The second volume of Special Counsel Robert Mueller’s “Report On The Investigation Into Russian Interference In The 2016 Presidential Election” enumerated multiple instances where Trump allegedly violated 1512(c)(2).

Mueller concluded that Trump’s behavior in office met the statute’s largely undefined language regarding obstruction. “Section 1512(c)(2) applies to corrupt acts — including by public officials — that frustrate the commencement or conduct of a proceeding, and not just to acts that make evidence unavailable or impair its integrity.”

Mueller, however, did not refer Trump to the Justice Department on the obstruction count even though he repeatedly suggested the then-president should be investigated accordingly. Attorney General William Barr disagreed with Mueller’s assessment and did not charge Trump.

But the government’s desire to broadly interpret the statute in Trump-related cases did not end there.

Within days of the Jan. 6 riot at the Capitol, a grand jury empaneled by the U.S. Attorney for the District of Columbia started handing up indictments on the 1512(c)(2) offense. Jacob Chansley, the so-called “QAnon Shaman,” was the first protester charged for obstruction of an official proceeding, on Jan. 11, 2021.

Some of the accused never entered the Capitol or went inside after Congress recessed. Enrique Tarrio, leader of the Proud Boys, was in a Baltimore hotel on Jan. 6 following court orders to stay out of the nation’s capital. Trump himself never set foot on Capitol Hill that day.

The same cannot be said for Thomas Robertson, a Virginia police sergeant at the time. (He was immediately fired from his job.) The government indicted Robertson, a former Army Ranger with no criminal record, on six federal crimes including 1512(c)(2). Despite Robertson’s facing no charge related to assaulting a police officer or vandalizing property – and being inside the building for roughly 20 minutes – U.S. District Court Judge Christopher Cooper revoked Robertson’s bond in July 2021.

Before his April 2022 trial, Robertson filed a motion to dismiss the charge related to 1512(c)(2). Robertson argued, as others have in similar dismissal motions, that Congress’ work on Jan. 6 was outside the fundamental scope of the law. “The electoral count is a ceremonial and administrative event that is not an ‘official proceeding’ contemplated in §1512; it is not an adjudicative proceeding involving witness testimony and evidence,” his lawyer wrote.

Further, the courts’ historical definition of “corruptly” – requiring an individual intentionally breaking the law in an effort to “obstruct” something – had been stretched in Robertson’s case to encompass social media posts. Robertson generally objected to the ill-defined nature of the statute as well as DOJ’s selective use of it.

“[Inconsistent] charging decisions, along with the inherently vague words in the statute … that is the basis for charging these defendants, all show that 18 U.S.C. §1512(c)(2) is unconstitutionally vague.”

The trial judge, appointed by President Barack Obama in 2014, did not agree. Citing similar decisions by eight of his judicial colleagues up to that point, Cooper denied the motion and rejected the defense’s argument that 1512(c)(2) was unconstitutionally vague. Robertson’s “corrupt” intent, Cooper concluded, was demonstrated by social media posts before and on Jan. 6, including Robertson’s online claims that, “CNN and the Left are just mad because we actually attacked the government,” and “IN ONE DAY took the f***** U.S. Capitol.”

That was sufficient for Cooper to doubt Robertson’s motives. “If Robertson had expressed his views only through social media, he almost certainly would not be here. But he also allegedly took action — entering the Capitol without lawful authority in an alleged attempt to impede the Electoral College vote certification. His words remain relevant to his intent and motive for taking those alleged actions.”

Following a four-day trial, a D.C. jury quickly found Roberston guilty on all counts. Robertson was the second of dozens of Jan. 6 defendants subsequently found guilty at trial on 1512(c)(2) and (and other charges) and he was sentenced to 87 months – more than seven years – in prison.

Prosecutors routinely ask for up to five years for 1512(c)(2) convictions, either by a jury or through plea agreements. In some cases, DOJ successfully asked judges to deny release for defendants simply charged with 1512(c)(2). A judge denied Jacob Chansley’s release based on the obstruction charge; he remained behind bars until he accepted a plea offer nine months later and was then sentenced to 41 months.

But the application of the statute is in unsettled judicial territory. While the various courts that have heard appeals regarding its use have so far backed the government’s position, they have all rendered split decisions marked by often fiery dissents. In April, a three-judge panel of the appellate court in Washington hearing the case USA v. Fischer gave what one of the judges described as a “splintered” decision to barely uphold the charge against the three defendants, who also were charged with assaulting police officers.

At the outset, Judge Florence Pan, who was appointed by President Biden in 2021, acknowledged the DOJ’s novel use of 1512(c)(2) in USA v. Fischer. “To be sure, outside of the January 6 cases brought in this jurisdiction, there is no precedent for using 1512(c)(2) to prosecute the type of conduct at issue in this case.” Nonetheless, Pan applied a “broad reading of the statute” in Jan. 6 cases.

Controversy in the Fischer appeal largely centered on the definition of “corruptly,” the crux of many defense motions to dismiss the count. Pan argued that because the Jan. 6 defendants in Fischer also assaulted police officers, they acted “corruptly” by engaging in unlawful conduct in pursuit of “obstructing” the Electoral College certification.

Judge Justin Walker, who was appointed by President Trump, wrote that he had a narrower reading of the word “corruptly.” Acting corruptly, Walker wrote, involves the pursuit of “an unlawful benefit” for the individual or for someone else. Nevertheless, he joined Pan’s majority opinion.

In dissenting with his colleagues, another Trump appointee, Judge Gregory Katsas, emphasized 1512(c)(2)’s history as “covering document-shredding and other ways to conceal or destroy evidence.” Further, Katsas illustrated how casting a wide net to cover “corrupt” acts could easily run afoul of the First Amendment and ensnare otherwise legal activity to influence government. The government’s unprecedented use of 1512(c)(2) in Jan. 6 cases could apply to “advocacy, lobbying, and protest” in the future, Katsas wrote.

Katsas seemed to almost mock DOJ’s retooling of a corporate fraud act to encompass unruly protests. “[Section] 1512(c)(2) …seems an unlikely candidate to extend obstruction law into new realms of political speech.” And in quoting another judge, Katsas joked that every building in Washington would be converted into a prison should DOJ’s current reading of obstruction stand.

A differently configured appellate court – which still includes Justice Pan – reached a similarly split outcome this month in Robertson’s appeal of the 1512(c)(2) conviction.

A three-judge appellate panel again ruled 2-1 in favor of the government. Pan, who is married to well-known Democratic Party activist Max Stier, wrote the majority opinion for both decisions.

Robertson’s appeal raised even thornier questions for the appellate court since he was not convicted of assaulting police. Pan and Judge Cornelia Pillard, an Obama appointee who barely survived a fraught Senate confirmation fight in 2013, agreed that Robertson’s presence on restricted grounds and “disorderly” behavior filled the legal bill on corrupt intent.

By Pan and Pillard’s standards, 1512(c)(2) would have applied to hundreds of protesters who illegally remained in Senate office buildings and physically confronted lawmakers during the confirmation hearings for Brett Kavanaugh in 2018. Same for protesters who two weeks agodisrupted a Senate Foreign Relations Committee hearing and unlawfully occupied the Rotunda in the Cannon Office building to protest the Israeli-Hamas war.

In her dissent in the Robertson appeal, Judge Karen Henderson, appointed by George W. Bush, criticized her colleagues’ “eye-popping sweep” of what rises to corrupt conduct. Further, Henderson argued that any unlawful benefit, another factor when considering whether someone acted “corruptly,” must involve some personal or professional gain outside of simply wanting one’s preferred candidate to remain in office.

“None of this evidence comes close to establishing at all — much less beyond a reasonable doubt — that Robertson acted with the intent to obtain an unlawful benefit for himself or another.” Henderson supported vacating Robertson’s conviction and modifying his prison sentence accordingly.

Defense attorneys in the Fischer case recently filed petitions before the Supreme Court to reverse the appellate court’s 2-1 ruling. Robertson’s attorneys are expected to file their own pleadings before the highest court.

Some court observers warn of danger ahead for DOJ, the federal courts, and Special Counsel Smith. Writing for Lawfare, a blog hosted by the Brookings Institute, Roger Parloff described the twin appellate rulings as “fragile” and “precarious.” Parloff, who has covered high-profile trials such as the Proud Boys, noted that Republican-appointed judges by and large rejected the government’s use of 1512(c)(2) while Democratic-appointed judges did not. The DOJ, Parloff concluded, has little to celebrate.

“[These] victories are exquisitely unstable. Even without a circuit split, it’s hard to see how the Supreme Court can let Fischer stand,” Parloff wrote on Oct. 25. And if opinions depend on the political affiliation of the deciding judges, “the department faces bleak prospects indeed” at the Supreme Court.

While touting the Fischer decision as a win for Jack Smith, Andrew Weissmann, lead prosecutor in the Mueller investigation, admitted the Supreme Court could find “some part of the decision to be inapplicable.” Nonetheless, Weissmann said it would be a “stretch” for the Supreme Court “to find that all of those judges were wrong, and the D.C. circuit was wrong.”

Washington Post legal affairs columnist Jason Willick warned in April that the Fischer case “could make American politics even worse.” Willick criticized the DOJ for rejiggering the obstruction law at a time of heightened political tension. The country does not need, Willick wrote, “a new, open-ended grant of power to prosecutors to reach into the political system,” one that could be used in the future against “interest groups and officials who fall out of favor with the president’s Justice Department.”

This is the tangled legal and judicial system in the nation’s capital that now awaits Donald Trump: a quick-trigger jury pool deciding the merits of a dubious charge as federal judges widen the utility and interpretation of a law written to close a loophole related to corporate interference in criminal investigations.

The special counsel is now on a collision course of sorts. U.S. Solicitor General Elizabeth Prelogar filed a brief on October 30 asking the Supreme Court to deny the petition to review the appellate court’s decision in Fischer; the Supreme Court—only four justices need to agree—could take up the matter as early as this month. By granting certiorari, the court would send a signal it is prepared to overturn how both the government and the federal courts have interpreted the obstruction statute.

If that happens, Jack Smith will be presented with a major decision: whether to proceed with the prosecution of a former president on an offense that may be overturned by the Supreme Court – and one he brought at some risk months after the divided Fischer opinion.

Given the potential timing of arguments before the high court this summer and issuance of an opinion, Smith could be handed a devastating blow to this landmark case just as Judge Tanya Chutkan is preparing to sentence Trump, if convicted, after the March 2024 trial.