Hugo Lowell writes:

Included in the indictment last week against Donald Trump for his efforts to subvert the 2020 presidential election was a count of obstructing an official proceeding – the attempt to stop the vote certification in Congress on the day his supporters mounted the January 6 Capitol attack.

The count is notable, because – based on a review of previous judicial rulings in other cases where the charge has been brought – it may be one where prosecutors will not need to prove Trump knew he lost the election, as the former president’s legal team has repeatedly claimed.

The obstruction of an official proceeding statute has four parts, but in Trump’s case what is at issue is the final element: whether the defendant acted corruptly.

The definition of “corruptly” is currently under review by the US court of appeals for the DC circuit in the case titled United States v Robertson. Yet previous rulings by district court judges and a different three-judge panel in the DC circuit in an earlier case suggest how it will apply to Trump.

In short: even with the most conservative interpretation, prosecutors at trial may not need to show that Trump knew his lies about 2020 election fraud to be false, or that the ex-president knew he had lost to Joe Biden.

“There’s no need to prove that Trump knew he lost the election to establish corrupt intent,” said Norman Eisen, special counsel to the House judiciary committee in the first Trump impeachment.

“The benefit under the statute is the presidency itself – and Trump clearly knew that without his unlawful actions, Congress was going to certify Biden as the winner of the election. That’s all the corrupt intent you need,” Eisen said. [Continue reading…]