After 18 months of work, weeks of anticipation and several days of delays, the House committee investigating the Jan. 6 insurrectionfinally released its massive report on Dec. 22. The pages and pages of evidence, exposition and witness statements offer a very in-depth look at the Capitol violence, and former President Donald Trump’s role in it. The report also highlights a major theme of Trump’s tenure in the White House: obstruction of justice.
While not quite as high-end of a crime as inciting insurrection, obstruction of justice is a key pain point for the justice system. It’s no wonder that Trump allies have been trying for years to dismiss obstruction as too insignificant for prosecutors. That perception must change.
As early as 2018, Trump’s buddies began to undermine the idea that obstruction of justice was a crime. As public allegations against Trump became more serious, Rush Limbaugh famously complainedthat obstruction was just a “process crime,” a cry that others subsequently took up as well. Michael Anton, former spokesman for Trump’s National Security Council, complained about special counsel Robert Mueller’s pursuit of a “process” crime on Fox News that November.
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Lawyers know that getting the process right is important to winning a case, even if process issues themselves are often viewed annoyances. But Limbaugh was not a prosecutor. And to prosecutors, obstruction of justice is serious business, a matter of substance, not process. The range of potential crimes, and different ways justice can be obstructed, are expansive — for good reason.
Even former President Richard Nixon, for all of his sins, did not want to be accused of obstruction justice. In his famous, “I am not a crook” speech, he contended, “in all my years of public life, I’ve never obstructed justice.”
If people who commit crimes take the subsequent step of trying to cover them up, a series of provisions in the federal criminal code permit prosecutors to indict, under the umbrella of obstruction. There are statutes prohibiting people who buy off witnesses, ship them out of town to keep them from testifying, or harm them. These statutes also address people who tamper with or destroy evidence or try to interfere with an investigation being conducted by the legislative or executive branch. Attempting to obstruct, even if unsuccessful, is a crime.208
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So, the notion that obstruction is, merely, an unimportant “process crime” runs contrary to foundational notions in our legal system. And yet dismissing it in that offhand fashion is very Trumpian. If you cannot legitimately deny something, argue it’s not important.
Special counsel Robert Mueller laid out 10 instances of obstruction by Trump in a 2019 report, at least five of which I believe should have been prosecutable, including Trump firing FBI director James Comey, trying to fire Mueller and trying to ensure his White House counsel lied about trying to fire Mueller. We don’t know why Merrick Garland’s Department of Justice did not proceed against Trump for those allegations, as Mueller had made it clear that once out of office, Trump could be prosecuted. Perhaps Garland and others harbored a misplaced hope that after leaving office, Trump would retreat from public life and democracy would be best served by permitting him to do so. But in hindsight, it’s clear that allowing Trump to get away with obstruction only emboldens him.
Now, the House committee has laid out a clear case for indicting Trump on obstruction charges connected to Jan. 6. His alleged crime, obstructing an official proceeding, fits the publicly known evidence in an eerily precise fashion, almost as though the crime was designed for his conduct. Trump wanted to prevent Congress from certifying Joe Biden’s electoral college victory and took a series of steps up to and including demanding that his vice president, Mike Pence, interfere with the proceedings before watching and doing nothing for 187 minutes as the mob he had summoned overran the Capitol and prevented the certification of the vote from taking place. It is, as they say, in the heartland of the crime.
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Obstruction is also part of Trump’s conduct that is under investigation at Mar-a-Lago. Prosecutors are investigating whether Trump may have violated the Espionage Act and mishandled classified documents. That happened after the former president’s office claimed Trump had previously turned over all documents bearing classification markings. Obstruction seems to be a consistent presence in Trumpworld.
Fifth. Fifth. Fifth. Trump allies answered the Jan. 6 committee questions with the same chorus — at least those who showed up pursuant to their subpoenas. When asked about issues like whether they spoke with Trump in the days ahead of the insurrection (Stone), whether they worked for the Justice Department (Clark) and whether they believed in the peaceful transfer of power (Flynn), their non-answers were the same. Everyone has a constitutional right to decline to testify when a truthful answer might incriminate them. But law enforcement investigations shouldn’t end when a witness invokes this right; if anything, it should spur them on to additional investigation.
And evidence is emerging that at least one Jan. 6 witness, Cassidy Hutchinson, was counseled to have a bad memory, groomed to potentially obstruct in ways that wouldn’t be easily recognizable or prosecutable, had she not had a turn of conscience and decided to cooperate. As the committee releases additional transcripts, it is clear that while Hutchinson ultimately decided to come clean, the same may not be true for all witnesses.
People don’t just obstruct justice in a vacuum. They obstruct to conceal other crimes. Here, the possible crimes include inciting to obstruct a congressional proceeding because Donald Trump wanted to stay in power after the voters told him no. That’s not just a “process crime.” And DOJ would do well to take up the mantle the Jan. 6 committee has handed them and hold Trump (and his friends) accountable.
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