Obstruct This

Over and over in the prosecutions, since the first accusatory documents were filed against Thomas Caldwell, Donovan Crowl, and Jessica Watkins, the U.S. Department of Justice has written the words “18 USC §1512(c)(2), Obstruction of Congress.”  Or, as they sometimes pen it, “18 USC §1512(c)(2), Obstruction of an Official Proceeding.” Over and over, the US DOJ has misrepresented the law.

Statute Number, “Statute title.”

This is the format used by an attorney to signal a statute section and the title of that statute or subdivision.  The words after the section are to be quoted verbatim out of the statute.  Except that this use of words by the US DOJ – “Obstruction of Congress” - or words like it is a misrepresentation of the law.  It is yet another falsehood being advanced by the US DOJ.

Even I fell for this one, up to a point.  I do not represent any of the defendants.  I am also looking at a broader stage than any one of the 19 so-called-by-DOJ “Oath Keeper defendants.”  That’s my defense on why I didn’t check it sooner.

Normally, when I am the attorney representing a client and I am served papers by opposing counsel, the statute sections are where I start.  I look up every reference.  I print out the version of the statute on that day (statutes undergo constant revisions).  I check whether opposing counsel has accurately quoted, described, or depicted the statute.

This time, I didn’t do it until the plea deals abruptly appeared with Caleb Berry, Mark Grods, and Graydon Young, pleading to two counts, one of which was 18 USC §1512(c)(2). 

Then I looked it up because I was so beside myself at the terms of the deals.

Then I started pacing around my office.

 18 USC §1512(c)(2) does not say and is not “Obstruction of Congress.”

 Here’s how it went down. On July 20: pulled the three deals, looked up the charges.  Next day, kicked out a blog on the injustice of the three plea deals.  I recorded “Viewpoints” with Lockwood Phillips for 107.1 WTKF, which aired July 25.  I went live for an hour with Bill Frady of Lock and Load Radio on July 23. And I debated how to set out my findings on the statutory misrepresentation by the US DOJ in a manner that would not sound too inside baseball.

if the statute heading was (it is not) and if the content of the statute was (it is not) simply the words “obstruction of Congress,” there might be an argument that anything goes. Interruption of a filabuster in by a citizen shouting and tossing rotten tomatoes from the gallery. A sit-in in the Rotunda, choking off the hallways to either Chamber.

You know: any of those inconvenient First Amendment things that slow down Congress when it’s in motion of doing something - anything.

But that, friends, is a legal fiction.

18 USC 1512 - Tampering with a witness, victim, or an informant.

18 USC §1512, “Tampering with a witness, victim, or an informant.”

This is how the statute should properly be cited.  There are no subheaders to the statute.  It is legally incorrect for the US DOJ to have written in even one submission – let alone seven months of it – “Obstruction of Congress.”

18 USC §1512 is one of a group of contiguous statutes to insulate legal proceedings, particularly aspects of witnesses and evidence.  This group of statutes is designed to support Due Process, which is the functionality of other rights such as the confrontation of witnesses and the examination of evidence.  The next, §1513, “Retaliating against a witness, victim, or an informant.”  §1514?  “Civil action to restrain harassment of a victim or witness.”  18 USC §1514A – “Civil action to protect against retaliation in fraud cases,” a whistleblower protection statute.  And on.

What the US DOJ Admitted Late Yesterday

 During this same time period that the US DOJ drafted and signed and caused three defendants to sign criminal plea deals (June 23 – July 9), motion practice was started by other defendants’ attorneys (June 15 – July 5), including, specifically, to dismiss the charges under 18 USC §1512(c)(2).

Yesterday afternoon, July 29, the US DOJ filed its responsive papers on the motions, including an admission buried on page 15 of 48, “No court appears to have had occasion to interpret Section 1515(a)(1)(B) phrase “proceeding before the Congress, presumably because it is unambiguous.” [§1515 is “Definitions for certain provisions; general provision.]

Oh, it’s unambiguous alright.  “Unambiguous” if Congress is in the process of a criminal prosecution, like an impeachment proceeding with a charge of obstruction of justice against Former President Bill Clinton, with all or substantially all constitutional elements of a criminal trial before a court.  A “proceeding,” in other words, that could be synonymous with “hearing,” except that the term “hearing” is generally reserved for the judicial branch.

What the US DOJ admitted yesterday is that they made up their own interpretation of a federal criminal statute.  What none of the attorneys – prosecution or defense – discuss in their papers is that three men have already signed off on plea deals that will effect the rest of their lives, if accepted by the DC District Court Justice Amit Mehta, when he reviews the documents and hands down sentencing in September.

Is Nancy Pelosi Guilty of 18 USC §1512(a)(1)(B)?

How many of us watched House Speaker Nancy Pelosi rip up Former President Donald Trump’s written copy of his 2020 “State of the Union” address before the Joint Session of Congress?  That written statement is a requirement.  It is a formality set forth to create a permanent record of the President’s remarks in the People’s House.

But, no.  Not guilty.  That written statement was just that, a document, being entered into the record.  And Speaker Pelosi ripping up the President’s speech was nothing more than poorly-acted political theatre.  We can roll our eyes at it, but she can’t be charged for doing it under a provision concerning “Tampering with a witness, victim, or an informant.”

The defendants charged under 18 USC §1512(c)(2) are no more guilty of obstructing a proceeding in Congress than was Speaker Pelosi.

Or, they all are, including Speaker Pelosi.

But you’re going to have to take your pick.  The hand of the law is steadier than any one man or any one Attorney General heading a DOJ in a campaign of “shock and awe.”

And, for the record, quoting from the DOJ plea deals, 18 USC §1512(c)(2) “carries a maximum sentence of 20 years of imprisonment; a fine of $250,000, pursuant to 18 USC §3571(b)(3); a term of supervised release of not more than 3 years, pursuant to 18 USC §3583(b)(2); and, an obligation to pay any applicable interest or penalties on fines and restitution not timely made.” 

Like I said: take your pick.