Emptywheel: The Thinness of the January 6 committee's Obstruction referral

[Fiendish Thingy]

https://www.emptywheel.net/2022/12/20/the-thinness-of-the-january-6-committees-obstruction-referral/

don’t so much mind that the Committee made these referrals. But I think they did a poor job of things.

For example, they don’t even consider whether Trump is exposed for aiding and abetting the actual assaults, something that Judge Amit Mehta said is a plausible (civil) charge against Trump. Some of the Committee’s evidence, especially Trump’s foreknowledge that the mob he sent to the Capitol was armed, would very much support such a charge. If Trump were held accountable for something like the tasing of Michael Fanone it would clarify how directly his actions contributed to the actual violence.

I’m also mystified why the Committee referred the obstruction conspiracy under 371 without consideration of doing so under 1512(k), even as DOJ increasingly emphasizes the latter approach. If DOJ’s application of obstruction is upheld, then charging conspiracy on 1512 rather than 371 not only brings higher base level exposure (20 years as opposed to 5), but it also lays out enhancements for the use of violence. If this application of obstruction is upheld, by charging conspiracy under 1512(k), you have a ready way to hold Trump accountable for the physical threat to Mike Pence.

It’s in the way that the Committee referred the obstruction charge, however, I’m most disappointed. This referral matters, mostly, if it can be used by DOJ to bolster its own defense of the statute or by a sympathetic judge to write a compelling opinion.

And this referral is weak on several counts. First, even with evidence that Trump knew his mob was armed when he sent them to the Capitol, the referral does not incorporate emphasis that the David Carter opinion they rely on did: That Trump (and John Eastman) not only asked Mike Pence to do something illegal, but then used the mob as a tool to pressure Pence.

Much, much more, with evidence and receipts, at link above.

Marcy goes into great detail how the committee’s referral omits or ignores the stringent judicial standards for prosecuting obstruction, standards which the evidence gathered by the committee clearly shows has been met.

Hopefully, DOJ will feel free to ignore the committee’s framing of their obstruction referral, and proceed with their own, more judicially sound, prosecution.

[Walleye]

1. A committee has to reach a consensus. Even if they were in agreement on major points

A special prosecutor can go right to the facts and the crimes

[Ocelot II]

2. That opinion does not seem to be shared by most of the legal talking heads on tv,

but regardless, I'm sure DOJ understands what they have to do and how they have to do it. The J6 Committee's investigation was intended to gather facts supporting what Congress needs to do to prevent a future president from tampering with elections, which is their remit as a legislative body and not a prosecutorial one; accordingly there was no need to frame their report in the same manner as an indictment. They concluded that the facts they uncovered would support a criminal case, but it's not up to them to decide how that should be done. Jack Smith will use the J6 investigation along with DOJ's own investigation to take to a grand jury. The committee's report is, more than anything, a report to the public, and its greatest and best use will be to prime public opinion for DOJ's indictments that follow.

[emulatorloo]

5. +++

[Raven123]

3. I'm not a legal eagle, but in my mind J6 Committee has done a very good job

The Committee has had limited resources and incomplete information. Raskin was clear and concise about how they decided who to refer and the basis for those referrals. As has been noted they agreed unanimously with those decisions. No single person made the decisions. The explanation was clear and concise. That their decisions did not meet the standards of every legal expert does not bother me. The DOJ is a separate entity, and may indeed pursue different charges under different statutes speaks to the differences in their role, the tools available and perhaps their approach.

[TigressDem]

4. As it stands, it sent a shockwave. Yet, still seems "less witch hunty" this way, less partisan.

MAIN goal of the committee (as I read this) is to BAR him from ever getting into political power again.
WHICH under 14th Amendment, Section 3 is the responsibility of Congress.

Their OVERABUNDANCE of facts and evidence is being handed over to the DOJ, which as others said can push the charges farther.

SO after the initial shockwave, it gets re-examined as a CRIMINAL complaint and all the pieces line up.

[Elessar Zappa]

6. I think they did fine.

The DOJ will do their, regardless of what the report says. I have confidence in Jack Smith.

[Takket]

7. Well she's not understanding the committee's place

The Jan 6 committee is a Congressional oversite committee, not a law enforcement agency. She argues this case like a prosecutor looking to indict but that isn’t what a Congressional committee is. They’ve done the best they could to come up with evidence and apply it to statutes where they think it fits. But these are still just referrals and DOJ are the subject matter experts.

Keep in mind as well that the committee has neither the time nor the resources to get to the depth of prosecutorial granularity that she is looking for here. They have flexed the muscles of Congress to get them a good deal of information and help the public understand how criminal this all was. But it is really DOJ that has to paint in the full picture.

[Fiendish Thingy]

8. Her quibble isn't with the committee's mission or report, but the specific statute cited

In the criminal referral for obstruction.

The committee isn’t a law enforcement agency, but they did cite specific statutes in their criminal referrals to DOJ. Marcy’s concern is the committee seems to have not included evidence meeting the specific standards required by the judiciary to prove guilt of obstruction.

[Ocelot II]

9. But the complete report hasn't come out yet,

and anyhow I'm sure DoJ will be able to sort out which statutes apply to which evidence. The J6 report isn't conclusive and it doesn't limit DoJ to anything. Seems to me to be an unnecessary quibble.