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Prosecutors Eyed Obstruction Charges Months Before Jack Smith Took Over Trump Case
Months before special counsel Jack Smith took over the case, federal prosecutors in Washington, D.C. Were considering obstruction charges in connection with Donald Trump's bid to subvert the 2020 election.
A newly unsealed court filing related to the Trump grand jury investigation shows that prosecutors were eyeing the charge — which had already been deployed against dozens of Jan. 6 riot defendants — at least by September 2022 and perhaps as early as the spring.
It's not clear whether the prosecutors at the time were considering bringing the charge against Trump himself or only against people in his orbit. Eventually, Smith did charge Trump with obstruction in the summer of 2023. The unsealed document underscores the Justice Department's long and laborious pursuit of evidence to support the obstruction allegations now lodged against Trump — even as the statute itself could be upended by the Supreme Court.
The filing relates to search warrants obtained by prosecutors in June and July 2022 to scour the personal email accounts of former Justice Department official Jeffrey Clark, his deputy Kenneth Klukowski and the Chapman University account of attorney John Eastman. Those warrants had previously been disclosed by U.S. District Court Judge Beryl Howell, who unsealed documents connected to the search a full year ago.
However, the versions of the documents released last year were redacted to conceal the precise charges being considered by prosecutors as they obtained those warrants. On Tuesday, the newly unsealed document revealed that the potential charges included "obstruction of an official proceeding" and "false statements."
Smith took over the investigation two months after federal prosecutors obtained access to Clark's emails — including hundreds of drafts of an autobiography that included his thoughts related to the 2020 election. And in August 2023, Smith obtained a grand jury indictment charging Trump himself with the same obstruction charge that prosecutors were investigating before he took over the case. Clark was identified as "co-conspirator 4," one of six alleged co-conspirators who all remain uncharged.
The filing indicates federal prosecutors began weighing obstruction charges in connection with the Trump probe well before the House's Jan. 6 select committee formally recommended that the former president be indicted on the charge. The "obstruction of an official proceeding" law — which has now been leveled against more than 300 Jan. 6 defendants — is itself under scrutiny by the Supreme Court, which agreed last week to consider a challenge to the way prosecutors have used it against the pro-Trump rioters.
The new filing underscores the protracted and elaborate process that prosecutors undertook before bringing charges against Trump. Despite Trump's repeated claims that prosecutors timed the criminal charges against him to coincide with his bid to retake the White House, the underlying documents show that the Justice Department fought extensive battles throughout 2022 to access crucial information to support a criminal case.
Those battles appeared to begin around the same time that California-based U.S. District Court Judge David Carter concluded that Trump and Eastman "likely" conspired to disrupt the transfer of power, including by their attempts to obstruct Congress' Jan. 6 proceedings. Carter's March 28, 2022 opinion — which came after the Jan. 6 committee similarly suggested Trump may have committed obstruction — was the first judicial determination that Trump may have violated the law, and it facilitated the House panel's access to Eastman's emails.
But it would be another six months before the Justice Department would win closed-door court battles to access Clark's emails. The battles included three springtime hearings to develop a "filter protocol" meant to shield privileged materials from investigators, the approval of an initial search warrant to seize Eastman and Clark's devices in June 2022, additional search warrants to govern the review of those devices, disclosing the files to Clark and his attorney, and a final determination by Howell in September 2022 that permitted investigators to access a subset of the seized files.
The end of this process coincided with a series of secret legal battles by Trump seeking to block investigators' access to key witnesses like his White House counsel Pat Cipollone and former chief of staff Mark Meadows. Those battles began in October 2022, when prosecutors sought to interview top aides to former Vice President Mike Pence, and ended in April, when Trump's objections were defeated and top aides, as well as Pence himself, testified before the grand jury.
Supreme Court Will Review Scope Of Obstruction Law That Trump Is Charged With Breaking
The Supreme Court has agreed to take up a case that could derail hundreds of Jan. 6 felony prosecutions — and could also deal a blow to special counsel Jack Smith's prosecution of former President Donald Trump.
The case, arising from the prosecution of a Jan. 6 defendant accused of pushing against police and inflaming a mob attempting to breach the Capitol, calls into question prosecutors' handling of an Enron-era obstruction law to punish those who stormed Congress.
The federal charge, "obstruction of an official proceeding," carries a 20-year maximum sentence and is one of the four felony counts that Trump is facing in his own Washington, D.C. Criminal case . Another count charges him with conspiring to violate the obstruction law.
The high court's decision to consider the scope of the obstruction law comes as prosecutors in Trump's case are urging the justices to take up a separate appeal over his claims that he is immune from prosecution for his actions related to the 2020 election because he was serving as president at the time.
The court's announcement Wednesday that it will hear the obstruction case, which involves Jan. 6 defendant Joseph Fischer, doesn't directly affect the prosecution of Trump by special counsel Jack Smith. But by throwing one of the charges in Trump's case into limbo, it could bolster Trump's efforts to slow down that case and put off the trial, which is scheduled to open March 4.
Federal prosecutors have charged at least 327 Jan. 6 defendants with obstructing Congress' proceedings that day. One of them was Fischer, who the Justice Department says pushed against police, encouraged other members of the mob to break through police lines and had at least one physical encounter with an officer.
Fischer contended that the obstruction charge was improper because it was only meant to punish physical tampering with documents, such as paper shredding. U.S. District Court Judge Carl Nichols, a Trump appointee, agreed with Fischer and dismissed the obstruction charge because of a lack of any allegation that he'd intended to impede the handling of any records, such as the electoral votes.
Given the hundreds of prosecutions, virtually every other district court judge in Washington eventually weighed in on the question. All who did rejected the argument Nichols found persuasive.
The Justice Department appealed Nichols' ruling and prevailed, with a three-judge appeals court panel agreeing that the obstruction charge could be applied to those who interfered with Congress' ability to count electoral votes on Jan. 6 and could not be limited simply to defendants who tampered with physical evidence.
But the appeals court panel also splintered over a deeper question about the obstruction law, which requires prosecutors to prove that defendants acted "corruptly." Appeals court judges struggled with how to define the term in a way that would not also sweep in wide swaths of plainly legal activity — like First Amendment-protected protests, lobbying and advocacy.
Trump's actions have lurked in the background of many of the legal debates, with some lawyers noting that Trump's efforts to get some conservative senators to stall the proceedings on Jan. 6 can be seen as typical legislative foot-dragging but could also be deemed part of a corrupt attempt by Trump to scuttle the electoral vote tally altogether.
That theory is embraced by the criminal case special counsel Jack Smith filed against Trump in August, charging him with taking various steps to interfere with the electoral vote certification based on fraud claims he knew to be false.
In Fischer's petition to the high court , his attorneys conceded that the obstruction statute applies to some proceedings conducted by Congress, but asked the justices to decide whether that would "include acts unrelated to investigations and evidence."
In addition to reviewing Fischer's question about physical destruction of documents, the Supreme Court may now also consider how to define "corrupt" efforts to impede "official proceedings," like sessions of Congress or grand jury investigations.
A handful of Jan. 6 defendants have been acquitted of obstruction charges after judges determined prosecutors failed to prove that they were acting "corruptly." That's because some of the defendants didn't appear to know there was a session of Congress occurring that day at all or believed that the session had already ended when they went inside the Capitol.
The Supreme Court will likely hear oral arguments on the issue in the spring, with a decision to follow by the end of June.
Federal Judge Warns Of Jan. 6 Case Backlog As Supreme Court Weighs Key Obstruction Statute
Washington — Just days after the Supreme Court agreed to examine the breadth of an obstruction law used to prosecute hundreds of defendants for their alleged actions during the Jan. 6, 2021, Capitol riot, the court's very consideration of the law is already being invoked in both federal district court proceedings and by those already convicted in high-profile Jan. 6 cases.
In one such hearing Friday, U.S. District Judge Beryl Howell warned of a possible backlog of cases involving the federal statute, known as 1512, which accuses defendants of obstructing an official proceeding.
The Supreme Court has not yet scheduled oral arguments in the case challenging how the Justice Department has used the statute, though they are expected to take place in the spring, with a decision coming by the end of June.
The Justice Department has charged more than 327 defendants with the crime, which carries a maximum of 20 years in prison, and more than 50 have pleaded guilty to the count, according to a CBS News review of court documents and proceedings. Former President Donald Trump has also been charged with two counts under the obstruction law — conspiracy to obstruct an official proceeding and obstruction of an official proceeding — by special counsel Jack Smith. He has pleaded not guilty to both of these counts, as well as two others that arose over his alleged actions in the wake of the 2020 presidential election.
Howell said from the bench Friday she has heard from fellow judges in Washington's federal district court that they have already come across requests from Jan. 6 defendants who are either charged with or have pleaded guilty to the obstruction charge and are now asking to pause proceedings until the Supreme Court determines whether the statute can be applied to Jan. 6-related conduct.
Howell said that such requests are not "unreasonable" and suggested a federal prosecutor narrow a plea offer involving the 1512 count to focus on another charge to avoid delaying the case. Howell indicated the judges in the court could encounter backlogs in scheduling because of the high court's review.
The U.S. Attorney for Washington, D.C., who has charged more than 1,000 Jan. 6 defendants in all, declined to comment, citing the ongoing litigation.
"A significant bargaining chip"Gene Rossi, a former federal prosecutor who went on to represent a member of the Oath Keepers charged for his conduct on Jan. 6, said a Supreme Court ruling that is favorable to defendants could benefit those who either pleaded guilty to obstruction or were convicted of violating the statute. Defendants whose cases have already been adjudicated can return to the trial court and request either new trials or lesser sentence. The obstruction charge "permeated" every major Jan. 6 trial in the district court in Washington, he said.
"The 1512 charge for the prosecutors was their gold standard, it was their North Star. It was the capstone of their prosecutions," Rossi told CBS News. "If the Supreme Court removes that capstone, that gold star, that North Star, that could be a tremendous game-changer for many defendants."
For defendants whose cases are in earlier stages and have not yet gone to trial, Rossi said the Supreme Court's decision to hear the case helps them, and may change how prosecutors pursue plea agreements.
"The Supreme Court's acceptance of this case for argument is a significant bargaining chip because any smart, wise and seasoned prosecutor would say listen, I'm not going to insist on 1512 because there's a risk, and if the defendant wants to plead to lower charges, lower felonies or misdemeanors, I'd rather have a bird in the hand than risk not having anything," Rossi said.
The Justice Department, he said, is "trying to put a square peg into a round hole" by charging defendants under a statute that arose in the wake of the Enron scandal in the early 2000s. The accounting firm Arthur Andersen was charged with obstruction for destroying millions of documents and electronic records related to Enron as the Securities and Exchange Commission was opening an investigation into the energy giant.
Pursuing the obstruction charge against Jan. 6 defendants was "aggressive" and the Supreme Court deciding to accept the case "is a red flag and a loud gong," Rossi said.
The Supreme Court case
People walk past the Supreme Court in Washington, D.C., on Nov. 13, 2023. MANDEL NGAN/AFP via Getty Images Requests for the Supreme Court to weigh in on the 1512 statute arose from three criminal prosecutions of defendants charged for their participation in the assault on the Capitol. The three men — Edward Lang, Garrett Miller and Joseph Fischer — were each charged with corruptly obstructing, influencing or impeding an official proceeding. The provision is part of the Sarbanes-Oxley Act, which was passed in 2002 following the Enron scandal.
The defendants each raised problems with various aspects of how the Justice Department used the charge against alleged Jan. 6 rioters, including prosecutors' interpretation of "corruptly" and whether the statute is broad enough to cover the conduct tied to the Capitol breach.
The Justice Department had urged the Supreme Court to turn away the trio of cases, arguing in part that it was too early for the justices to intervene, given that neither Lang, Miller nor Fischer had been convicted of violating the obstruction statute.
Solicitor General Elizabeth Prelogar, who represents the U.S. Before the high court, defended the Justice Department's use of the measure, writing in a filing that the statute is broad in scope. She said it encompasses conduct directed at the official proceeding itself — the joint session of Congress on Jan. 6, where lawmakers gathered to certify Electoral College votes — rather than records or evidence that might be considered during the proceeding.
"It is therefore natural to say that a defendant obstructs an official proceeding by physically blocking it from occurring — as happened here when petitioners and others violently occupied the Capitol for several hours and thereby prevented the joint session of Congress from doing its work," Prelogar wrote.
Though all three cases were related and decided by the U.S. Court of Appeals for the District of Columbia Circuit together, the Supreme Court agreed to hear only Fischer's case challenging the reach of the law.
Defendants push for lighter sentencesAlready, high-profile defendants have asked for temporary remedies in their cases as the justices consider Fischer's appeal.
On Wednesday, former Oath Keepers affiliate Thomas Caldwell asked the federal judge overseeing his case to delay his sentencing, which was scheduled for later this month. Caldwell was acquitted of more serious charges but convicted of the 1512 obstruction statute after standing trial with leader Stewart Rhodes.
"The government is requesting a 14-year sentence for Caldwell based almost entirely upon his finding of guilt" on the obstruction charge, his attorney David Fischer wrote, asking the judge to put a hold on the sentencing until the high court rules.
"We believe that Mr. Caldwell will ultimately be exonerated by a favorable ruling in the Supreme Court, and therefore believe it is appropriate to delay his sentencing," Fischer told CBS News in a statement. The judge in the case agreed to delay Caldwell's sentencing a few days after the request was filed.
Another high-profile defendant, Kevin Seefried, who rose to prominence after he was seen carrying a Confederate flag throughout the Capitol at the height of the breach, asked a federal judge in Washington to release him from his three-year prison sentence as the case is considered.
Seefried was convicted of five counts including obstruction of an official proceeding and disorderly conduct last year and has since challenged the legality of the 1512 statute himself. His lawyers argued in court filings Friday that if the obstruction count is dismissed, his prison sentence should be substantially reduced.
"A favorable resolution of the substantial question raised by Mr. Seefried is very likely to result in a sentence less than the total of the time he has already served given the expected duration of the appeal process," the attorney wrote.
A lawyer for Donovan Crowl, a member of the Oath Keepers who was convicted in July of conspiracy to obstruct an official proceeding and civil disorder, asked Judge Amit Mehta on Friday to pause his sentencing, set for Jan. 12, pending the Supreme Court's resolution of Fischer's case.
If the 1512 conviction is tossed out as a result of a ruling from the high court, Crowl's sentencing "would be materially impacted," as a number of factors that courts consider at sentencing would be more favorable to Crowl, his lawyer Carmen Hernandez argued in a filing.
Hernandez told CBS News she sought to have Crowl's sentencing pushed back because she thinks the Supreme Court case "bodes well" for Jan. 6 defendants.
Neither of the federal judges considering Caldwell, Seefried or Crowl's cases have decided on their requests. Seefried's public defenders did not respond to CBS News' request for comment.
Late Friday, another federal judge denied one of the first requests to pause a sentencing hearing set for next week based on the Supreme Court's review of the 1512 statute. Sara Carpenter's request was denied as the judge overseeing her case ruled her "sentence is not heavily dependent on her conviction" on the obstruction count because of the other charges she faced.
Carpenter was convicted on seven counts, including felony civil disorder, and the judge's brief order on Friday noted that the totality of the counts of which she was convicted could pose challenges for other defendants looking to do the same.
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