Defendant’s trial in Capitol riot turns into possible criminal charge for Trump

The statute is usually applied to court-related conduct, such as threatening judges, jurors, or witnesses. Prosecutors, however, have filed obstruction charges against about one-third of the approximately 700 defendants on Jan. 6 for their alleged attempts to disrupt the election results Congress was conducting when a mob loyal to Trump broke through police lines and formed a mob. made his way to the Capitol.

In a Monday hearing for Defendant Garret Miller of Richardson, Texas, Nichols took the first step toward a Trump analogy by asking a prosecutor whether the obstructionist statute could have been violated by someone simply called “Vice President Pence.” called to let him adjudicate the certification in some way.” The judge also asked the prosecutor to believe that the person who tried to convince Pence had the “appropriate mens rea” or guilty spirit to be responsible for a crime.

Nichols made no specific mention of Trump appointing him to the bench, but the then-president publicly and privately pressured Pence in the days before the fateful January 6 count to deny Joe Biden’s victory. Trump also enlisted other allies, including attorney John Eastman, to lean on Pence.

An attorney for the Justice Department’s Criminal Division, James Pearce, initially seemed to reject the idea that simply lobbying Pence to refuse to recognize the election results would be tantamount to obstructing or attempting to obstruct official proceedings.

“I don’t understand how you get that,” Pearce told the judge.

However, Pearce was quick to add that it could be a crime if the person contacting Pence knew that the vice president was required by the constitution to recognize the result.

“If that person does, knowing it’s not an available argument” [and is] asking the vice president to do something that the individual knows is unlawful…one of the definitions of “corrupt” is trying to get someone to violate a legal duty,” Pearce said.

Later in the hearing, Clinton Broden, Miller’s attorney, came back to the issue arguing that the example the judge presented demonstrated the problem with reading the obstruction law to cover nearly every attempt to tamper with almost anything a federal government official or body was to be postponed. intend to do.

While the judge and prosecutor managed to discuss the subject without explicitly mentioning Trump, the attorney was more blunt.

“That worries me if that’s really the government’s position, if former President Trump tried to convince Vice President Pence not to certify the election, if there’s evidence that he didn’t really believe Vice President Pence had that power. That would be a violation of the obstruction law, Broden said. “That looks like the rabbit trail we will follow under the government’s reading of the statute.”

Trump has publicly maintained that he believed and still believes that Pence had the power to refuse and could have refused the election votes submitted by state officials, potentially allowing the presidential election to be decided in the House of Representatives.

Eastman, a conservative law professor and former Justice Department official, prepared legal opinions with these arguments. However, most other lawyers of various political persuasions have ridiculed that claim. Pence and his aides concluded that he had no such discretion in the process and that it would be dangerous if he did.

The in-court debate over Trump’s possible criminal culpability in the Capitol riots raised a nagging and uneasy question for the Justice Department: whether it is seriously trying to investigate whether the former president committed crimes in connection with the events of 6 January. .

Justice Department emails released last week in response to a BuzzFeed Freedom of Information Act request showed that officials were trying to address this delicate issue in the hours and days immediately following January 6.

“We’re looking at all the actors here, and everyone who had a part, and if the evidence fits the elements of a crime, they’ll be charged,” acting U.S. Attorney Michael Sherwin told reporters on a conference call that day. after the riots.

Despite that promise, there have been no outward signs in the past 10 months that the Justice Department is actively investigating Trump or those closest to him for their activities leading up to or during the riots. Sherwin left the department in March, after judges criticized some of his comments to the media.

Miller is charged with a range of offenses including obstruction of justice, assaulting a federal officer, and making threats against a police officer and Rep. Alexandria Ocasio-Cortez (DN.Y.). Prosecutors say Miller posted a series of calls for violence on social media in the wake of the Capitol takeover on Jan. 6. After Ocasio-Cortez took to Twitter to push for Trump’s impeachment, Miller is said to have replied, “Kill AOC.”

Miller is just one of more than half a dozen Capitol riot suspects currently challenging the use of the obstruction charge in their cases.

Broden, the defense attorney, said Monday the government’s interpretation was so broad that interfering with nearly any activity a judge does could amount to obstruction and — at least theoretically — face up to 20 years in prison.

“There has to be a limit. If someone comes in while the court is performing a wedding, is that an official procedure?” Broden asked, urging the court to give the defendant the benefit of the doubt under a legal doctrine known as the rule of “lenity.”

Nichols did not rule on the matter Monday, nor did he give a clear indication of where he is likely to end up on the matter, which is also under consideration by other judges.

The prosecution and defense in Miller’s case also argued Monday over claims that Jan. 6 defendants are being treated unreasonably harshly for political reasons, especially when compared to people arrested for actions taken during civil unrest in Portland last year. , Oregon.

“The Portland rioters have engaged in far more violent conduct than Mr Miller has been accused of,” Broden said. “I think it’s a concern…for a lot of the public.”

But an attorney for the Justice Department’s Criminal Division, David Lieberman, said prosecutors had good reasons for distinguishing between the cases, including the seriousness of the Capitol attack and the fact that the evidence against many of those being sued in Portland wasn’t as good as that. available for the Capitol cases.

“You had officers at 2 a.m. in full tactical gear trying to identify a person in the crowd,” Lieberman said in Portland.

Broden said Monday that Miller planned to reject the government’s proposal to resolve the matter by pleading guilty to the obstruction charge and assault charge against a federal officer. Prosecutors appear not to have insisted that Miller plead guilty to the alleged threat against Ocasio-Cortez.

Near the end of Monday’s nearly two-hour trial, Nichols secretly heard arguments about whether Miller should be released from custody. The judge did not say why the public was barred from that portion of the hearing.

No trial date has been set in the case, but Nichols arranged a new hearing for December 21. He also said he was concerned that Miller and the relatively small fraction of the Jan. 6 defendants who are in pre-trial detention are “under considerable pressure” due to delays caused by the pandemic and the massive increase in cases resulting from the riots. in the Capitol.

“I think we should move this case forward as soon as possible,” the judge said.

Kyle Cheney contributed to this report.

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