The law is generally applied to conduct related to court, such as threatening judges, jurors or witnesses. However, prosecutors brought the obstruction charge against about one-third of the roughly 700 defendants on Jan.6 for their alleged efforts to disrupt the electoral vote count that Congress was undertaking when a crowd loyal to Trump crossed the lines. police and broke into the Capitol.
At a hearing Monday for accused Garret Miller of Richardson, Texas, Nichols took the first step towards a Trump analogy by asking a prosecutor whether the obstruction law could have been violated by someone who has simply “called Vice President Pence to seek to have him judge certification in a particular way. The judge also asked the prosecutor to assume that the person trying to persuade Pence had the” proper mens rea, “or wit. guilty, to be responsible for a crime.
Nichols made no specific mention of Trump, who appointed him to the bench, but the then president was pressuring Pence publicly and privately in the days leading up to the fateful Jan.6 count to refuse to certify the victory of Joe Biden. Trump has also enlisted other allies, including lawyer John Eastman, to lean on Pence.
Justice Department criminal lawyer James Pearce initially appeared to reject the idea that simply pressuring Pence to refuse to recognize the election result would amount to the crime of obstructing or to attempt to obstruct a formal process.
“I don’t see how that gives you that,” Pearce told the judge.
However, Pearce was quick to add that it could well be a crime if the person contacting Pence knew the Vice President had a constitutional obligation to acknowledge the outcome.
“If this person does this knowing that this is not an available argument [and is] ask the vice president to do something that the individual knows is wrong …
Later in the hearing, Miller’s defense attorney Clinton Broden returned to the issue, arguing that the example raised by the judge showed the problem of reading the obstruction law to cover almost any type of effort to delay almost anything that a federal government official or agency planned to do. to do.
While the judge and prosecutor managed to discuss the matter without explicitly mentioning Trump, the defense attorney was more blunt.
“It bothers me if this is really the government’s position, that if former President Trump was trying to convince Vice President Pence not to certify the election, if there is evidence that he did not believe really that Vice President Pence had that power, “it could be a violation of the obstruction law,” Broden said. “It sounds like the rabbit trail that we are going to follow under government reading of the law.”
Trump has publicly maintained that he believes and still believes that Pence had the power to refuse to recognize electoral votes submitted by state officials and could have refused to do so, potentially returning the presidential election to the House of Representatives for decision.
Eastman, a Conservative law professor and former Justice Department official, has prepared legal opinions making these arguments. However, most other lawyers of various political persuasions ridiculed this claim. Pence and his associates concluded that he did not have such discretion in the process and that it would be dangerous if he did.
The discussion in court over Trump’s potential criminal culpability in the Capitol Riot raised a nagging and uncomfortable question for the Justice Department: whether it is making a serious effort to investigate whether the former president committed crimes in connection with the events of January 6. .
Emails from the Internal Justice Department released last week in response to a Freedom of Information Act request by BuzzFeed showed officials were attempting to resolve this delicate issue in the hours and days immediately following the release. January 6.
“We are looking at all of the actors here, and all of those who played a role, and the evidence matches the elements of a crime, they are going to be charged,” Acting US Attorney Michael Sherwin told reporters at a conference telephone the next day. riot.
Despite this commitment, there has been no outward sign in the past 10 months that the Justice Department is actively investigating Trump or those close to him about their activities before or during the riot. Sherwin left the department in March, following criticism from judges over some of his comments to the media.
Miller is charged with a series of offenses including obstruction, assault on a federal agent, and threats against a police officer and Rep. Alexandria Ocasio-Cortez (DN.Y.). Prosecutors say that following the Capitol takeover on Jan.6, Miller posted a series of calls for violence on social media. After Ocasio-Cortez asked for Trump’s impeachment on Twitter, Miller reportedly replied, “Assassinate AOC.”
Miller is just one of more than a half-dozen Capitol Hill riot defendants currently challenging the use of the obstruction charge in their cases.
Broden, the defense attorney, said on Monday that the government’s interpretation was so broad that disrupting almost any activity of a judge could amount to obstruction and result – at least, theoretically – in a sentence of 20. years in prison.
“There must be a limit. If someone comes in while the court is celebrating a wedding, is that a formal process? Broden asked, urging the court to give the accused the benefit of any doubt under a legal doctrine known as the “leniency” rule.
Nichols did not comment on the matter on Monday, nor gave a clear indication of where he is likely to speak on the matter, which is also being considered by other judges.
The prosecution and defense in the Miller case also discussed on Monday allegations that the January 6 defendants are being treated excessively harshly for political reasons, especially in relation to those arrested for actions carried out during civil unrest. last year in Portland, Oregon.
“The Portland rioters engaged in much more aggressive behavior than what Mr. Miller is accused of committing,” Broden said. “I think that’s a concern … for a lot of the public.”
But Justice Department Criminal Division attorney David Lieberman said prosecutors had good reason to distinguish between the cases, including the seriousness of the Capitol attack and the fact that the evidence against many of those indicted in Portland weren’t that good. available for Capitol cases.
“You had officers at 2 a.m. in full tactical gear trying to identify a person in the crowd,” in Portland, Lieberman said.
Broden said Monday that Miller plans to reject the government’s proposal to resolve the case by pleading guilty to the obstruction charge and the charge of assaulting a federal agent. Prosecutors do not appear to have insisted that Miller plead guilty to the alleged threat against Ocasio-Cortez.
Towards the end of the nearly two-hour hearing on Monday, Nichols heard arguments in secret over whether Miller should be released from pre-trial detention. The judge did not specify why the public had been excluded from this part of the session.
No trial date has been set in the case, but Nichols has scheduled another hearing for December 21. He also said he feared Miller and the relatively small fraction of the Jan. 6 defendants who are in pre-trial detention would be under “a lot of pressure.” ”Due to the delays caused by the pandemic and the huge increase in the number of cases due to the Capitol riot.
“I think we need to keep moving this case forward as quickly as possible,” the judge said.
Kyle Cheney contributed to this report.