Included in the indictment last week against Donald Trump for his efforts to subvert the 2020 presidential election was a count of obstructing an official proceeding – the attempt to stop the vote certification in Congress on the day his supporters mounted the January 6 Capitol attack.
The count is notable, because – based on a review of previous judicial rulings in other cases where the charge has been brought – it may be one where prosecutors will not need to prove Trump knew he lost the election, as the former president’s legal team has repeatedly claimed.
The obstruction of an official proceeding statute has four parts, but in Trump’s case what is at issue is the final element: whether the defendant acted corruptly.
The definition of “corruptly” is currently under review by the US court of appeals for the DC circuit in the case titled United States v Robertson. Yet previous rulings by district court judges and a different three-judge panel in the DC circuit in an earlier case suggest how it will apply to Trump.
In short: even with the most conservative interpretation, prosecutors at trial may not need to show that Trump knew his lies about 2020 election fraud to be false, or that the ex-president knew he had lost to Joe Biden.
“There’s no need to prove that Trump knew he lost the election to establish corrupt intent,” said Norman Eisen, special counsel to the House judiciary committee in the first Trump impeachment.
“The benefit under the statute is the presidency itself – and Trump clearly knew that without his unlawful actions, Congress was going to certify Biden as the winner of the election. That’s all the corrupt intent you need,” Eisen said.
According to the 45-page indictment, prosecutors in the office of special counsel Jack Smith have evidence that Trump knew of the significance of impeding the vote certification when he pressured his vice-president, Mike Pence, to interfere, saying he otherwise could not remain president.
Trump plainly attempted to obstruct the vote certification that would have affirmed Biden’s election win, the indictment shows, as he implored Pence to accept the fake slates of Trump electors from battleground states and delay proceedings, or reject the Biden slates entirely.
Trump also took steps he knew would impede proceedings, the indictment shows, when he called senators seeking further delay after the certification was interrupted by the riot, and when he later refused a plea from the White House counsel to “allow the certification”.
Trump and his allies have suggested he tried to stop the vote certification because he genuinely believed the 2020 election was stolen, and that prosecutors would have to prove Trump did not believe the claims. But that may not be necessary.
Last month, US district court judge Royce Lamberth wrote an opinion in the conviction of January 6 riot defendant Alan Hostetter in which he made it clear that Hostetter’s belief about a stolen 2020 election was not a defense to the “corruptly” element to the obstruction charge.
“Even if Mr Hostetter genuinely believed the election was stolen and that public officials had committed treason, that does not change the fact that he acted corruptly with consciousness of wrongdoing,” Lamberth wrote. “Belief in the greater good does not negate consciousness of wrongdoing.”
Lamberth took into account the fact that Hostetter was “actively cheering on rioters” as the Capitol attack unfolded. The Trump indictment had a parallel, when prosecutors described the former president as having “exploited the disruption” when violence ensued.
Those reasonings could be applied to Trump, legal experts said, especially because Lamberth also found that Hostetter had satisfied the stricter interpretation of “corruptly” to mean “unlawful benefit”, as suggested in April in an opinion from DC circuit judge Justin Walker.
The interpretation by Walker would not be a material difference to Lamberth’s opinion, the experts said, because prosecutors could simply argue Trump gained a benefit he was not otherwise entitled to: still being president because Congress had not announced Biden as the next president.
Coming in the same case as Walker’s opinion was a dissent from DC circuit judge Gregory Katsas, another Trump appointee, who thought the “corruptly” element should mean a defendant sought “an unlawful financial, professional, or exculpatory advantage”.
The interpretation by Katsas should not discourage prosecutors, the experts said, because Trump could still be argued to have gained a professional advantage through the obstruction, namely he would have remained president.
It was not clear when the three-judge panel in the Robertson case – composed of Bush-appointed Karen Henderson, Obama-appointed Cornelia Pillard and Biden-appointed Florence Pan – will issue a ruling on the definition of “corruptly”, after it heard arguments in the case on 11 May.
