History, it appears, is repeating itself—at least when it comes to the latest crusade to destroy Donald Trump and everyone around him.
For nearly three years, the American people were warned that Donald Trump had been in cahoots with the Kremlin to rig the 2016 presidential election. Trump-Russia election collusion, the original “stop the steal” campaign—that is, until questioning the outcome of American elections was designated a criminal conspiracy after November 2020—dominated the attention of the ruling class and the entirety of the national news media.
Every instrument of power—the FBI, a secret surveillance court, congressional committees, a special counsel—was leveraged to uncover the “truth” about the Trump campaign’s alleged dirty dealings with Mother Russia.
Hyperbolic accusations about the president, his family, and close associates were similar to accusations now levied against those associated with the so-called “insurrection” said to have been incited by Trump: Russia collusion, like the four-hour disturbance at the Capitol on January 6, rendered Trump a traitor, a threat to democracy, a wannabe dictator, a psychotic cult leader, and a menace to global security—to name just a handful of the more outlandish claims.
Democrats sang Christmas carols and lit candles in honor of Special Counsel Robert Mueller; it only was a matter of time before Mueller’s posse of partisan attorneys dragged Trump out of the Oval Office in handcuffs and arrested him for conspiring with Vladimir Putin to defeat Hillary Clinton, they believed.
Then, disaster. Forced by William Barr, Trump’s new attorney general, to conclude his two-year fishing expedition, Mueller finally issued his long-awaited report in April 2019: “[The] investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”
Mueller never was going to find proof of Trump-Russia election collusion and everyone in Washington knew it. The final confession came as a shock only to the millions of brain-dead Americans deceived by professional liars such as Representative Adam Schiff (D-Calif.). To soften the blow, Mueller’s team instead pivoted to suggestions that Trump likely obstructed justice on numerous occasions, all in situations related to the president’s attempts to stop the destructive witch hunt against both him and his advisors, including former National Security Advisor Michael Flynn.
The animating statute cited in the Mueller report was section 1512(c)(2) of the U.S. code, “obstruction of an official proceeding.” As I explained in March, President George W. Bush signed the law in 2002 in the aftermath of the Enron scandal. Anyone who “corruptly . . . otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,” is guilty of a felony punishable by up to 20 years in prison.
While the law’s intent was to prevent interference in criminal investigations that involved any sort of evidence—it is a subsection of 1512, which relates to “tampering with a witness, victim, or an informant”—the wording is vague enough to be misinterpreted by nefarious prosecutors and lawmakers seeking to punish their political foes.
This is why Mueller’s prosecutors struggled to tie Trump’s alleged misconduct—for example, private conversations with FBI Director James Comey and Comey’s subsequent firing—to a formal government proceeding. Andrew Weissmann, the partisan attack dog who ran the Mueller probe and headed the Justice Department’s Enron Task Force nearly 20 years ago, has a deep affinity for the obstruction count.
Realizing the Mueller cabal was preparing to weaponize 1512(c)(2) against the president, Barr, in private practice at the time, sent a lengthy memo in 2018 to Deputy Attorney General Rod Rosenstein outlining the legal case against applying the statute to Trump’s conduct.
“Under this theory,” Barr wrote, “simply by exercising his Constitutional discretion in a facially-lawful way—for example, by removing or appointing an official; using his prosecutorial discretion to give direction on a case; or using his pardoning power—a President can be accused of committing a crime based solely on his subjective state of mind.”
Pursuing criminal charges under 1512(c)(2) against a sitting president, Barr admonished, would have “disastrous implications” on the executive branch in the future.
In the end, Mueller did not pursue obstruction charges against Trump, a matter that has stuck in the craw of #TheResistance ever since. But the events of January 6 have breathed new political life into the obstruction statute; Joe Biden’s Justice Department has slapped the charge against roughly 230 January 6 defendants in an effort to add a felony to mostly misdemeanor cases. Seven defendants so far have pleaded guilty to obstruction of an official proceeding, including Jacob Chansley, who was sentenced to 41 months in prison for the nonviolent offense.
Defense lawyers have filed motions to dismiss the count in several cases, arguing the law is being too broadly interpreted by the government and that the joint session of Congress on January 6 does not meet the definition of an official proceeding. “Congress was not engaged in a formal, fact-finding investigation or inquiry hearing wherein outside witnesses would be compelled to attend, documents subpoenaed, and sworn testimony was to be taken,” wrote David Fischer, an attorney representing a defendant in the Oath Keepers case, in a June filing. “Under the 12th Amendment, the certification process on January 6th was nothing more than a ministerial function of Congress that involved counting votes.”
Judges handling January 6 cases have expressed skepticism about the validity of applying the obstruction charge to political protesters. In a win for the government this week, Judge Dabney Friedrich, appointed in 2017 to the D.C. District Court by Donald Trump, sided with Biden’s Justice Department and disagreed that the definition of 1512(c)(2) “should be construed so narrowly.”
While the courts sort out the legalities of the obstruction charge, it appears as though—as with the Russia collusion hoax—Democratic voters, NeverTrump Republicans, and the news media are in for another major disappointment with another obstruction consolation prize.
In a dramatic reading of texts between Mark Meadows, Trump’s last chief of staff, and a few Fox News hosts, Representative Liz Cheney (R-Wyo.) warned the messages were the “smoking gun” to prove the president was responsible not for inciting an “insurrection!”—an accusation made on a near-hourly basis for almost a year—but for obstructing a perfunctory government ceremony.
“Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’ official proceedings to count electoral votes?” Cheney asked during this week’s meeting of the January 6 select committee.
So, that’s it? After all the overheated, dangerous rhetoric about an insurrection and accusations that Trump and his supporters tried to overthrow the U.S. government on January 6, the crime they actually committed is . . . obstruction? The “worst attack since the Civil War,” as Joe Biden insisted, a terror attack comparable to 9/11 and the Oklahoma City bombing, as Attorney General Merrick Garland claimed, now is downgraded to interrupting Congress for a few hours? A “gleeful desecration of . . . our temple of democracy,” as House Speaker Nancy Pelosi lamented, is nothing more than an annoying disruption of congressional business?
Insurrectionists are merely obstructionists?
Cheney is enjoying her newfound place of affection within the corporate news media and Democratic Party, factions that for years considered her father a war criminal. Acting as a useful idiot for Biden and Pelosi, Cheney nonetheless just set the stage for the latest letdown; Trump won’t be charged with insurrection or treason or sedition but perhaps only with obstruction.
Hardly the curtain call Trump-haters, including Cheney, were hoping for.