Members of the Jan. 6 select committee are homing in on a politically explosive question: Did Donald Trump’s actions amid the Capitol attack amount to criminal obstruction of Congress?
Twice this week, committee vice chair Rep. Liz Cheney (R-Wyo.) has raised the possibility that Trump’s conduct while a mob of his supporters overtook the Capitol could qualify as an effort to obstruct the certification of Joe Biden’s victory. Cheney described that as a “key” topic facing the panel, particularly as it seeks the testimony of one of Trump’s onetime closest aides, former White House chief of staff Mark Meadows.
“Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’ official proceeding to count electoral votes?” Cheney asked Tuesday as she urged colleagues to hold Meadows in contempt of Congress for refusing to be deposed. “Mark Meadows’ testimony is necessary to inform our legislative judgments.”
Cheney’s statement includes precise terminology from the criminal obstruction statute. And she’s not the only one pondering the matter: It’s become the subject of intense debate in the cases of dozens of Jan. 6 rioters whom prosecutors allege obstructed Congress’ effort to count electoral votes on Jan. 6.
To convict someone of that crime, a jury must determine that a defendant took an obstructive action, affected an “official proceeding” and acted with “corrupt” intentions. There are several obstruction statutes in the criminal code, but the one deployed by prosecutors in Jan. 6 cases is among the most severe, carrying a whopping 20-year maximum sentence.
Some defendants have challenged DOJ’s claim that the Jan. 6 session of Congress meets the legal definition of an “official proceeding” — but a Trump-appointed federal judge, Dabney Friedrich, rejected that claim in a recent opinion. Several other U.S. District Court judges are considering the same question in other Jan. 6 cases.
Cheney’s suggestion that “inaction” could lead to a violation of the obstruction statute is among the broadest interpretations of that law. Among the variables that judges in obstruction cases must consider is whether the law in question could apply to someone like Trump, whose specific actions on Jan. 6 may have technically been “lawful” even if they were done with the “corrupt” intent of interfering with Congress.
Friedrich called such scenarios “closer questions” than the matter of whether those who broke into the Capitol could be charged with obstruction, suggesting Trump’s actions fall into more of a gray area.
Nonetheless, Cheney has been careful to frame the question as necessary for the Jan. 6 committee’s “legislative judgments.” Trump has mounted numerous legal campaigns against congressional investigations by claiming they lack a true “legislative purpose” and instead amount to a shadow “law enforcement” effort.
Courts have long held that Congress is not permitted to investigate for the sake of law enforcement. But lawmakers are permitted to share the results of its probes with the Justice Department if they believe they have uncovered evidence of a crime.
It’s unclear if DOJ is looking at any aspects of the conduct by Trump or his allies related to Jan. 6. The department has indicted Trump associate Steve Bannon for contempt of Congress after he defied a subpoena from the select committee.
Other members of the Jan. 6 panel have stopped short of specifying the criminal elements of obstruction when discussing Trump’s conduct. But they’ve acknowledged that it’s on their radar.
“It’s clearly one of the things on the mind of some of the members of the committee,” said Rep. Jamie Raskin (D-Md.).
Raskin added that a series of text messages sent to Meadows on Jan. 6, revealed in public this week by Cheney, have heightened the relevance of the obstruction statute. The messages showed frantic efforts by close Trump associates — from aides to lawmakers to Fox News hosts to his own eldest son — to get the then-president to call off the rioters as they swarmed the Capitol. Trump did not act for hours amid the bedlam.
Other lawmakers see the question of obstruction as part of their larger investigation into what Trump was doing as the Capitol was under attack.
“I think that we’re trying to understand those 187 minutes that he didn’t say anything — what that means. And we’re trying to put some more light on that. I personally am not drawing any conclusions on where that takes us,” said panel member Rep. Pete Aguilar (D-Calif.).
