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Here’s Why Capitol Insurrectionists Are Being Charged Under a Post-Enron Law

Some defendants are complaining that it’s a misuse of the statute, but their case is weak.
January 13, 2022
Here’s Why Capitol Insurrectionists Are Being Charged Under a Post-Enron Law
A U.S. Capitol Police vehicle sits parked on the East Front of the U.S. Capitol as supporters of those charged in the January 6 attack on the U.S. Capitol begin to arrive for the 'Justice for J6' rally near the U.S. Capitol September 18, 2021 in Washington, DC. The protestors gathered in Washington, DC on Saturday to support over 600 people arrested and charged in connection with the January 6 attempted insurrection at the U.S. Capitol. (Photo by Anna Moneymaker/Getty Images)

Of the over 700 defendants arrested in connection with last year’s insurrection at the Capitol, at least 275 of them have, according to a Department of Justice statement released last week, “been charged with corruptly obstructing, influencing, or impeding an official proceeding, or attempting to do so.”

This language comes directly from a federal criminal statute found at 18 U.S.C. § 1512. But because it was only added to the law in 2002 as part of the Sarbanes-Oxley Act, defendants are balking that DOJ has misused it—a complaint that particularly matters because it’s the same criminal law that Rep. Liz Cheney (R-Wyo.), vice chair of the Jan. 6 Select Committee, has publicly flagged as ensnaring former President Donald Trump himself. The legitimacy of using this criminal statute has become a point of paranoid contention in far-right media, as when Steve Bannon discussed it on his podcast last week with guests Marjorie Taylor Greene and Julie Kelly.

All told, the argument that this statute doesn’t fit the alleged crimes is a stretch. If you read the plain language (rather than delve into the reasons behind the law), the defendants’ argument that it’s too narrow to cover the Jan. 6th crimes is not totally meritless, but it is weak.

The original statute dates back to the Victim and Witness Protection Act of 1982, a bill intended to “provide additional protections and assistance to victims and witnesses in Federal cases.” The law effectively criminalized federal witness tampering or retaliation. Although it gained wide bipartisan support, the bill was part of a years-long Republican emphasis on victim issues during an era when Strom Thurmond (R-S.C.) chaired the Senate Judiciary Committee and President Ronald Reagan proclaimed a “Victims Rights Week.” As DOJ explains on its website, “the federal criminal justice system cannot function without the participation of witnesses” and “the complete cooperation and truthful testimony of all witnesses.” Section 1512 thus made it a crime to kill, use or threaten to use physical force, knowingly use intimidation, or corruptly persuade another person to “influence, delay, or prevent the testimony of any person in an official proceeding,” among other things.

A new subsection to the statute, § 1512(c), was added in 2002 through Sarbanes-Oxley, which was a legislative response to the Enron accounting scandals that rocked the financial markets. The accounting firm for Enron, Arthur Andersen, shredded audit documents to conceal them from the Securities and Exchange Commission. A jury later found the accounting firm guilty of obstruction of justice. Accountant David B. Duncan testified at trial: “I instructed people on the [audit] team to follow the document-retention policy, which I knew would result in the destruction of documents.”

The Sarbanes-Oxley amendments to § 1512 were designed to extend the law’s reach beyond just witness tampering and, in the words of Sen. Trent Lott (R-Miss.), was considered “something we need to make clear so we do not have a repeat of what we saw with the Enron matter.” Section 1512(c) did two things: It made it a crime to “corruptly” alter, destroy, or conceal documents that might be used “in an official proceeding” and, in a catch-all provision, to “otherwise” obstruct, influence, or impede any official proceeding, or attempt to do so. It’s this catch-all phrase about otherwise obstructing or impeding an official proceeding that DOJ is employing against many of those who stormed the Capitol last January. In this case, the “official proceeding” is Congress’s certification of the Electoral College votes on Jan. 6, 2021.

Some advocates for the affected defendants argue that § 1512(c) should be limited to conduct that amounts to the destruction of evidence—the kind of activity that led to Arthur Anderson’s demise and prompted the Sarbanes-Oxley amendments. But the plain language is very broad, and does not contain anything conceivably limited to evidence tampering. A conservative “textualist” would, in theory, reject the claim that the sweeping text should somehow be confined by the legislative history illuminating Congress’s concerns. The text is what governs—not the trail of breadcrumbs left in the legislative history about individual members’ views on the subject.

Over the summer, a number of federal judges nonetheless questioned prosecutors about why they charged obstruction of an official proceeding for some defendants and but only brought lesser charges (e.g., remaining in a restricted building) against others. Judge Randolph Moss specifically asked about what limiting principle is being used to draw these lines: “Unless we can tell the public where that line is, there’s a problem.” Prosecutors appear to be leveraging the greater charge against members of the more organized, premeditated, and violent groups like the Proud Boys and the Oath Keepers, as well as notorious offenders who went into the Senate chamber or individual offices. It’s the felony that Jacob Chansley, the “QAnon shaman,” pleaded guilty to; he is now, after changing lawyers, appealing his sentence of 41 months in prison followed by 36 months of supervised release.

To be sure, an “unconstitutionally vague” statute can be struck down altogether, but that’s strong medicine that federal judges rarely take, out of deference to the legislative branch. In December, Judge Dabney Friedrich (a Trump appointee) dismissed those and other arguments against the charge, noting: “Statutes often reach beyond the principal evil that animated them.” She also rejected the assertion that “Congress’s Joint Session to certify the electoral results” is not an official proceeding. Two defendants in a case before Friedrich were charged with multiple felonies, including assaulting six police officers, so they were on the higher end of the spectrum of violence. Friedrich was the third judge as of the end of 2021 to rule against Jan. 6th defendants seeking to dismiss § 1512(c) charges.

That said, the line between corruptly influencing Congress and simple trespassing of the Capitol building is hard to draw. Does it require proof that an individual entered a restricted area? With a flagpole? With a gun? After all, one offense carries a six-month penalty and the other a maximum of 20 years in prison. The law’s text has no answers to these questions.

Judge Friedrich noted this ambiguity herself. Although for two of the defendants before her, “their conduct falls squarely within the core coverage” of the statute, the case of a third defendant was less obvious, and she refused thus far to rule for the government: “It is unclear, based on the indictment alone, what actions [the defendant] allegedly engaged in to obstruct and impede the official proceeding,” so “the Court cannot determine at this early stage of the proceeding whether the charges are unconstitutionally vague as applied to him.”

One final point worth noting: A key difference between these defendants and Donald Trump is that despite his pledge on Jan. 6th in a speech to join supporters—“we’re going to walk down [to Congress] and I’ll be there with you . . . we’re going to walk down Pennsylvania Avenue . . . let’s walk down Pennsylvania Avenue”—the former president did not himself get anywhere near the Capitol that day. The answer to the question whether he will once again evade legal accountability for the horrors of his presidency, therefore, does not lie in the text of § 1512(c).

Kimberly Wehle

Kimberly Wehle is a contributor to The Bulwark. She served as an assistant U.S. attorney and an associate independent counsel in the Whitewater investigation. She is currently a professor at the University of Baltimore School of Law. An ABC News legal contributor, she is the author of three books with HarperCollins: How to Read the Constitution—and Why, What You Need to Know About Voting—and Why, and, most recently, How to Think Like a Lawyer and Why—A Common-Sense Guide to Everyday Dilemmas. Her new book, Pardon Power: How the Pardon System Works—and Why, is forthcoming in September 2024 from Woodhall Press. @kimwehle.