The indictment released today by the Jan. 6 grand jury in Washington charges former President Donald Trump with four felony counts: two for obstruction of an official proceeding, one for conspiracy to defraud the United States, and one for conspiracy against rights. These are among the more straightforward crimes the special counsel could have charged; they are commonly used by prosecutors in a variety of contexts, and they avoid some of the legal pitfalls that would have attended charges like seditious conspiracy or incitement. The indictment tightly hews to the elements of the statutes, though the factual allegations are offered in support of all four crimes.
We examine the facts as set forth in the indictment in a separate article. And we provide an analysis and some commentary in another article. Here, we take a close look at the statutes at the heart of the indictment.
18 U.S.C. §§ 1512(c)(2) and 1512(k)
Among the charges Donald Trump faces, 18 U.S.C. § 1512(c)(2), or corruptly obstructing an official proceeding, will sound the most familiar to readers of this publication. The Lawfare team has covered the statute extensively in the context of Jan. 6 insurrectionists. The statute was passed in the aftermath of the Enron accounting scandal when corporate executives shredded incriminating documents to hide critical evidence of financial wrongdoing from investigators. Congress passed §1512(c) to criminalize the obstruction of evidence or the tampering of witnesses that would otherwise be relevant in an investigation.
Despite its origins, § 1512(c)(2) has been deployed against at least 308 of the nearly 1,000 January 6 rioters charged with federal crimes stemming from Jan. 6, with 70 already having been convicted under the statute. With the exception of seditious conspiracy, §1512(c)(2) has been the stiffest charge prosecutors have leveled against the insurrectionists; it carries a maximum penalty of 20 years. The charge is now leveled against the insurrection’s ringleader. [Continue reading…]