What's Really Stopping a Trump Prosecution?
Hurdles, Real and Imagined
On Saturday, in an apparent effort to prick the momentum generated by the January 6th Committee’s recent public hearings, the New York Times published a story headlined “Despite Growing Evidence, a Prosecution of Trump Would Face Challenges.”
The headline, of course, is substantially true. Any prosecution of a powerful, well-resourced person for a serious crime faces challenges, no matter the strength of the evidence arrayed against them, and those challenges grow geometrically when the person in question is a former president who sits at the top of a fanatical mass movement that’s willing to pursue its goals without ethical or legal restraints and that elevates personal fealty to him over adherence to factual reality or a set of pre-agreed rules. Nevertheless, the story is misbegotten, and I think it’s important to understand why.
The NYT lede frames an implicit argument that’s carried through the piece:
As new questions swirled this past week about former President Donald J. Trump’s potential criminal exposure for seeking to overturn the 2020 election, Mr. Trump issued a rambling 12-page statement.
It contained his usual mix of outlandish claims, hyperbole and outright falsehoods, but also something that Trump allies and legal experts said was notable and different: the beginnings of a legal defense.
On nearly every page, Mr. Trump gave explanations for why he was convinced that the 2020 election had been stolen from him and why he was well within his rights to challenge the results by any means available.
The argument, if I’m reading it right, is that Trump’s feelings of justification for acting as he did in the aftermath of the 2020 election (his “explanations for why he was convinced that the 2020 election had been stolen from him and why he was well within his rights to challenge the results by any means available”) constitutes the “beginnings of a legal defense.” It doesn’t, but the problems in the piece are worse than that.
As the story goes on, it becomes clear that the New York Times is not thinking of an affirmative legal defense of necessity or something along those lines—the sort of defense that’s offered in the courtroom after the prosecution has proven its prima facie case. Instead, the paper is asserting that any conceivable offense the federal government might charge Trump with would include a particular knowledge element:
If the Justice Department were to bring a case against [Trump], prosecutors would face the challenge of showing that he knew — or should have known — that his position was based on assertions about widespread election fraud that were false or that his attempt to block the congressional certification of the outcome was illegal.
This is, not to put too fine a point on it, horseshit.
First of all, it’s simply not possible to talk about the requirements of any conceivable criminal “case” like this. Criminal laws are highly specific and highly varied, so much so that any attempt to paint them with a broad brush quickly founders. The most scholars have been able to say about criminal laws on a general basis is that they set out a list of elements of an offense that the government is required to prove, and those elements generally include an actus reus, a criminal action, and a mens rea, a criminal mental state. Even this is oversimplified, as many jurisdictions define strict liability crimes that include no mental state element.
Second, NYT’s assertion appears to be assembled by stitching together things that sound good with a partial understanding of the issues at play. For intstance, the knowledge formulation NYT uses (“knew — or should have known —”) is commonplace in substantive laws relating to negligence or recklessness, but it doesn’t appear in the laws relating to obstruction, sedition, and conspiracy, which tend to deal with actual knowledge, not duties of care and substantial cognizable risks. Similarly, the first limb of the NYT’s knowledge element—Trump’s knowledge “that his position was based on assertions about widespread election fraud that were false”—appears out of nowhere and doesn’t pass the smell test. (The second limb is a closer question, and I’ll come back to that.)
While the NYT paints with a broad brush, there are two federal crimes that are most clearly in the foreground of the piece—a so-called conspiracy to defraud the United States under 18 USC 371 and obstruction (or attempted obstruction) of a congressional proceeding under 18 USC 1512(c)(2). These two crimes are distinguished by the extraordinary fact that a federal judge, David Carter, has already decided former President Trump and John Eastman likely committed the former and and attempted the latter. (He reached this conclusion in working through Eastman’s legal challenge to a subpoena for his emails from the January 6th Committee.) In order to illustrate some of the issues with NYT’s thinking, it’ll be helpful to focus on the obstruction charge, 1512(c)(2).
Early in its investigation of the violence on January 6th, DOJ zeroed in on 18 USC 1512(c)(2) as the most serious felony charge (short of seditious conspiracy) that it would apply broadly to the people who breached the Capitol building. As a result, that particular offense has now been charged scores of times in relation to the events of January 6th, its legal validity has been challenged repeatedly in motions to dismiss, it has been upheld at least ten times (and dismissed on two occasions by one maverick judge), and numerous defendants have pleaded guilty. And crucially, that offense has been charged against defendants who sincerely believed Donald Trump’s lies about widespread election fraud. In none of the 1512(c)(2) cases to date, so far as I am aware, has it been held—or even asserted—that the government must prove the defendant knew Trump’s election lies to be false in order to win a conviction. So why would prosecutors have to prove that for Trump, the teller of the lies? It simply would not make sense.
As applied to 1512(c)(2), the second limb of NYT’s knowledge test—Trump’s knowledge “that his attempt to block the congressional certification of the outcome was illegal”—has some more basis in the court decisions we’ve seen. The 1512(c) statute reads as follows:
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.
The required mental state for this statute is contained in a single word, “corruptly.” And 1512 is far from the only obstruction statute to boil mens rea down to that one word. Congress did not supply an applicable definition of “corruptly,” so courts have mulled and tweaked their own understandings of its meaning over the years, and settled on a bright line rule that makes for easy cases. As Judge Friedrich, one of the judges who approved 1512(c)(2) charges for Capitol insurrectionists, writes:
In considering the meaning of “corruptly” (or wrongfully), courts have drawn a clear distinction between lawful and unlawful conduct. In Arthur Andersen LLP v. United States, 544 U.S. 696 (2005), the Supreme Court explained, in the context of § 1512(b), that “corruptly” is “associated with wrongful, immoral, depraved, or evil.” Id. at 705 (internal quotations omitted). It noted that persuading someone to withhold testimony or documents from the government is not always “wrongful”—for instance, when persuading someone to invoke his or her right against self-incrimination or the marital privilege, or when pursuing valid document retention policies. Id. at 704. And in North, Judge Silberman explained that a defendant “corruptly” obstructs or influences a congressional inquiry when he uses “independently criminal” means. 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part); see also Matthews, 505 F.3d at 706 (explaining that the word “wrongfully” guards against convicting someone who has a 24 “legal right”—such as the right to avoid self-incrimination—to obstruct or impede).12 By contrast, a defendant who withholds documents or testimony because of a valid privilege, see United States v. Farrell, 126 F.3d 484, 488 (3d Cir. 1997),13 lawfully lobbies Congress ahead of an official proceeding, or engages in First Amendment-protected protest activity does not act “corruptly” within the meaning of the statute. These real-world examples draw a line that is consistent with the definition of “wrongful”: “[t]hat is contrary to law, statute, or established rule.” Wrongful, def. 3(a), Oxford English Dictionary (2d ed. 1989). The ordinary meaning of “wrongful,” along with the judicial opinions construing it, identify a core set of conduct against which § 1512(c)(2) may be constitutionally applied—“independently criminal” conduct, North, 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part) that is “inherently malign,” Arthur Andersen, 544 U.S. at 704, and committed with the intent to obstruct an official proceeding, see Friske, 640 F.3d at 1291–92. “Corruptly” (or wrongfully) also acts to shield those who engage in lawful, innocent conduct—even when done with the intent to obstruct, impede, or influence the official proceeding—from falling within the ambit of § 1512(c)(2). See Arthur Andersen, 544 U.S. at 705–06.
In other words, it’s easy to say the January 6th insurrections acted corruptly, according to this bright line rule, because they chose unlawful means of interfering with Congress’s work—assaulting police officers, breaking windows and entering, invading offices, stealing items from the Capitol, etc.
By the same logic, Trump and Eastman may also present a fairly easy case because—according to the evidence the January 6th Committee has put forward—they knew and discussed that their plan to strong-arm Vice President Pence into suspending the joint session and sending the electoral votes back to certain states would violate federal law. As Judge Carter wrote:
Dr. Eastman argues that the plan was legally justified as it “was grounded on a good faith interpretation of the Constitution.” But “ignorance of the law is no excuse,” and believing the Electoral Count Act was unconstitutional did not give President Trump license to violate it. Disagreeing with the law entitled President Trump to seek a remedy in court, not to disrupt a constitutionally-mandated process. And President Trump knew how to pursue election claims in court—after filing and losing more than sixty suits, this plan was a last-ditch attempt to secure the Presidency by any means.
The illegality of the plan was obvious. Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections. Ignoring this history, President Trump vigorously campaigned for the Vice President to single-handedly determine the results of the 2020 election. As Vice President Pence stated, “no Vice President in American history has ever asserted such authority.” Every American—and certainly the President of the United States—knows that in a democracy, leaders are elected, not installed.
The illegality of the plan, obvious even to Trump (especially after Eastman purportedly told him), would be one way of proving he acted corruptly. But it’s important to note that’s not the only way to prove such a thing. Back to Judge Friedrich:
The Court recognizes that other cases, such as those involving lawful means… will present closer questions. … As courts have noted, difficult questions arise when lawful means are used with a corrupt purpose and with the intent to obstruct, influence, or impede an official proceeding. See, e.g., United States v. Doss, 630 F.3d 1181, 1189 (9th Cir. 2011); North, 910 F.2d at 943 (Silberman, J., concurring in part and dissenting in part). In Judge Silberman’s view, the purpose inquiry should focus narrowly on whether the defendant “was attempting to secure some advantage for himself or for others than was improper or not in accordance with the legal rights and duties of himself or others.” North, 910 F.2d at 944 (Silberman, J., concurring in part and dissenting in part); see also Aguilar, 515 U.S. at 616 (Scalia, J., concurring in part and dissenting in part) (the “longstanding and well-accepted meaning” of “corruptly” is “[a]n act done with an intent to give some advantage inconsistent with official duty and the rights of others”) (internal quotation marks omitted). See also United States v. Kanchanalak, 37 F. Supp. 2d 1, 4 (D.D.C. 1999) (noting that it may be too vague to require only that a defendant “act[ed] with an improper purpose”). This case, which allegedly involves unlawful means engaged in with the intent to obstruct, does not raise these challenging questions.
Ultimately, the potential for these other types of cases is why the second limb of NYT’s proposed legal test is as wrong as the first. It elevates one way of proving a defendant acted corruptly into the only way and confuses what’s available to DOJ prosecutors with what’s required of them.
More broadly, the notion that Trump’s liability for the post-election scheme that culminated in January 6th depends on some fiddly little argument his lawyers might make about how sincerely be believed he deserved to remain in power betrays a crabbed and stilted view of the world. A typical corrupt official might try to steal, by subterfuge, a government contract for a relative. Former President Trump and his allies tried to steal, by deceit and intimidation and eventually by main force, the government of the United States of America. Any prosecution of the man will face numerous difficulties, but we should have no problem proving that’s a crime.