On Jan. 6, Congress met to conduct an official proceeding: the counting of the Electoral College votes to certify Joe Biden’s win. But that proceeding was interrupted, as the whole world knows, by a mob of insurrectionists. As the House select committee investigation into the Capitol riot progresses, a vivid picture is emerging. It suggests many individuals, up to and including former President Donald Trump, worked hard to obstruct that official congressional proceeding. And I believe, as do other legal experts, that doing so constitutes a federal felony.
As the House select committee investigation into the Capitol riot progresses, a vivid picture is emerging.
The federal felony statute at play is straightforward: 18 U.S. Code § 1512, which provides that “whoever corruptly ... obstructs, influences, or impedes any official proceeding, or attempts to do so, shall be ... imprisoned not more than 20 years.” There have been several ominous signs that the evidence being developed by the House select committee directly implicates this statute.
Rep. Liz Cheney, R-Wyo., vice chair of the committee, has been sending not-so-subtle signals that this crime is in play. At a recent committee hearing, she said: "Mr. Meadows' own testimony will bear on another key question before this committee: Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’ official proceeding to count electoral votes?"
This is no casual observation by Cheney. It’s worth noting that prosecutors have charged several of the people who allegedly stormed the Capitol on Jan. 6 with this crime already. Lawyers for defendants Ronald Sandlin and Nathaniel DeGrave have pushed back, arguing the statute should not apply because the meeting of Congress to certify the election results does not rise to the level of an “official proceeding.” But this contention was rejected by U.S. District Judge Dabney Friedrich. Friedrich, a Trump appointee, clearly stated, “An ‘official proceeding’ under [section] 1512(c)(2) does not include any and all series of actions before Congress; rather, the proceeding must be akin to a formal hearing.”
“Congress’s Joint Session to certify the electoral results is such a formal hearing,” she wrote.
So Trump’s conduct on Jan. 6 — whipping his supporters up into an angry frenzy by lying to them about stolen votes and a rigged election and telling them if they don’t “fight like hell,” they “won’t have a country anymore” — plainly constitutes an attempt to influence or impede the Electoral College vote count. As does Trump’s refusal, for more than three hours, to directly call off the attack, even as his allies — Fox News hosts, congressional Republicans, his own son — furiously texted Trump’s then-chief of staff Mark Meadows, pleading with him to get Trump to tell his supporters to go home.
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But Trump isn’t the only one who needs to be concerned with the reach of 18 U.S. Code § 1512. Any conduct designed or intended to corruptly influence or impede an official proceeding could also violate federal law. Steve Bannon, for example, has already obstructed the House select committee investigation by refusing to comply with congressional subpoenas for both documents and testimony. As a result, the Department of Justice, specifically the United States Attorney’s Office for the District of Columbia, has indicted Bannon on two counts of contempt of Congress. But these charges may only be the Department of Justice's opening salvo.
By refusing to appear before the House committee, Bannon is wrongfully depriving Congress of documents and testimony relevant to its investigation into the insurrection. Bannon’s conduct not only should result in a contempt of Congress charge, it also arguably constitutes the crime of obstructing, influencing or impeding an official proceeding. In addition, Bannon may be violating a second federal statute, 18 U.S. Code § 1505, which outlaws the “obstruction of proceedings before departments, agencies, and committees,” a five-year felony. Mark Meadows’ recent defiance of a congressional subpoena and referral for prosecution puts him at risk of similar charges.
A counterargument here would be that if the Department of Justice wanted to charge Bannon with obstruction of Congress or of official proceedings, prosecutors could have done so at the same time they indicted him for contempt. This is a fair point, but it doesn’t consider the normal progression of a large-scale federal investigation.
It is entirely usual in criminal investigations involving multiple defendants, multiple crimes and far-reaching conspiracies to indict in phases, using what are called superseding indictments. Prosecutors will start by indicting the clearest, most obvious and most readily provable charge — like contempt of Congress for blowing off a congressional subpoena — and then begin to build.
By refusing to appear before the House committee, Bannon is wrongfully depriving Congress of documents and testimony relevant to its investigation into the insurrection.
Take a typical drug conspiracy investigation, as an example. Prosecutors may start by indicting someone for selling illegal narcotics. Then, as prosecutors continue to investigate, they may add additional drug crimes, like the importation and the manufacture of illegal narcotics. They may then indict other defendants — those who “cook,” prepare and package the drugs for distribution, for example — before moving on to “runners,” “lookouts” and enforcers for the drug operation. The final indictment will often include conspiracy charges, a “CCE” (continuing criminal enterprise) charge and, if the evidence supports it, a RICO (racketeer influenced and corrupt organizations) charge.
In early December, the federal prosecutors handling Bannon’s case told the judge that while they only needed one day to try Bannon, they’d rather a trial date be set for April, five months down the road. (The judge set a date in July.) As a former career prosecutor, I heard subtext: The prosecutors wanted to have enough time to add more charges against Bannon via a superseding indictment if they wanted to. Indeed, prosecutors will rarely try a single crime standing alone if they can properly bring a series of crimes in one indictment. This gives the prosecutors the power of context come trial time.
Much lies ahead in both the House select committee’s investigation and any possible criminal investigations and prosecutions. But by framing issues using the precise language of our federal criminal code, Cheney seems to be providing a road map for future criminal charges, including obstruction of official proceedings, next year.