The judge and lawyers discuss whether the then-president’s pressure on Vice President Mike Pence could have amounted to obstruction.
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Capitol riot suspect’s court hearing turns to potential criminal charge for Trump
The judge and lawyers discuss whether the then-president’s pressure on Vice President Mike Pence could have amounted to obstruction.
Could former President Donald Trump be charged with a crime for urging then-Vice President Mike Pence not to certify the electoral vote tally?
That appeared to be the thrust of a question U.S. District Court Judge Carl Nichols posed on Monday at a court hearing for one of the hundreds of Americans charged in the Capitol riot.
The judge and both sides in the case found themselves debating the scope of a law being wielded against many Jan. 6 defendants that makes it a felony to “corruptly” interfere with an official federal government proceeding and carries a penalty of up to 20 years in prison.
The statute is typically applied to court-related conduct, like threatening judges, jurors or witnesses. However, prosecutors have leveled the obstruction charge against about a third of the roughly 700 Jan. 6 defendants over their alleged efforts to disrupt the electoral vote tally that Congress was undertaking when a crowd loyal to Trump broke through police lines and forced their way into the Capitol.
At a hearing on Monday for defendant Garret Miller of Richardson, Texas, Nichols made the first move toward a Trump analogy by asking a prosecutor whether the obstruction statute could have been violated by someone who simply “called Vice President Pence to seek to have him adjudge the certification in a particular way.” The judge also asked the prosecutor to assume the person trying to persuade Pence had the “appropriate mens rea,” or guilty mind, to be responsible for a crime.
Nichols made no specific mention of Trump, who appointed him to the bench, but the then-president was publicly and privately pressuring Pence in the days before the fateful Jan. 6 tally to decline to certify Joe Biden’s victory. Trump also enlisted other allies, including attorney John Eastman, to lean on Pence.
An attorney with the Justice Department Criminal Division, James Pearce, initially seemed to dismiss the idea that merely lobbying Pence to refuse to recognize the electoral result would amount to the crime of obstructing or attempting to obstruct an official proceeding.
“I don’t see how that gets you that,” Pearce told the judge.
However, Pearce quickly added that it might well be a crime if the person reaching out to Pence knew the vice president had an obligation under the Constitution to recognize the result.
“If that person does that knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty,” Pearce said.
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