U.S. District Judge Dabney L. Friedrich ruled last week that an effort to interrupt the counting of the electoral votes can be a crime — even if no violence was contemplated.
The judge made a critical finding that the counting of the electoral votes in the House is an “official proceeding.” Her logic is airtight: “There is a presiding officer, a process by which objections can be heard, debated, and ruled upon, and a decision — the certification of the results — that must be reached before the session can be adjourned. Indeed, the certificates of electoral results are akin to records or documents that are produced during judicial proceedings, and any objections to these certificates can be analogized to evidentiary objections.”
The opinion gets even more interesting. The defendants argued that “corruptly” in the obstruction statute is too vague, but the judge rejected that with some ominous implications for those who plotted to halt the electoral vote counting:
In this sense, the plain meaning of “corruptly” encompasses both corrupt (improper) means and corrupt (morally debased) purposes. … The Court agrees that § 1512(c)’s proscription of knowing conduct undertaken with the specific intent to obstruct, impede, or influence the proceeding provides a clear standard to which the defendant can conform his behavior.
Because the defendants’ plan to violently enter the Capitol and disrupt the counting was “independently criminal,” she wrote, the defendants could be prosecuted for obstruction. In other words, they knew what they were doing was illegal. The judge — no doubt aware of the larger audience — added that “other cases, such as those involving lawful means ... will present closer questions.” That might, for example, involve someone who raised spurious objections to the electoral votes or urged a state to devise an alternative slate of electors.
What does this say about other defendants should Friedrich’s reading of the corruption law hold up? It is a blockbuster: If President Donald Trump and his cronies sought to stop the House proceedings (for example, by extorting Georgia Secretary of State Brad Raffensperger, inducing election state officials to commit fraud or pressuring the Justice Department to declare the election fraudulent), they too might find themselves on the wrong side of an obstruction charge.
“This December 10 Friedrich opinion does indeed seem important to me,” constitutional legal scholar Laurence Tribe tells me. Whether it is an obstruction charge — or a charge of sedition or conspiracy to commit sedition (under either sections 2383 or 2384 of Title 18 of the U.S. Code) — Tribe observes that the principal obstacle to prosecution has been “the argument that the electoral count certification in the Joint Session of Congress is too ministerial to count as an official proceeding.” However, Tribe concludes, “This federal court opinion undercuts that line of argument.”
Former acting solicitor general Neal Katyal has been voicing this exact argument for some time. “Judge Friedrich’s decision means the prosecutors don’t have to show someone intended violence for it to be a crime,” he explains. “So long as the intent was to influence and disrupt the congressional function of counting the votes, that is sufficient — so long as it was done ‘corruptly.’ ” Katyal notes that the judge cited “a prior ruling by a conservative superstar jurist, Judge Laurence Silberman, [who] defined ‘corruptly’ to be doing something by unlawful means.”
Katyal argues: “So as long as the intent was to disrupt the count, it would suffice to be criminal, which of course makes a lot of sense given the grave stakes here.” What is true of these two defendants, he adds, “goes for others, including anyone in the White House who aided the disruption.” He concludes that “Judge Friedrich’s decision, at bottom, is a how-to manual, demonstrating how government officials, including President Trump, can be criminally indicted."
Too many people have let themselves be sidetracked into looking for a connection between Trump and the violence of Jan. 6. But that evidence is unnecessary because the crime here is the end result — the intended disruption of the House electoral vote-counting. And from every document, news report or tell-all book we have seen, that is precisely what Trump tried to do. Simply because he told the world about his corrupt intent does not make it any less illegal.