The Capitol riot suspect’s trial becomes a possible criminal charge against Trump

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Donald Trump

The law typically applies to court-related conduct, such as threatening a judge, jury, or witness. However, prosecutors have charged about a third of the 700 or so defendants from the 6th Capitol with obstruction.

At a hearing on Monday for Defendant Garret Miller of Richardson, Texas, Nichols took the first step towards a Trump analogy by asking a prosecutor if the obstruction law could have been violated by someone who simply called “Vice President Pence,” to condemn him “. the certification in a special way. ”The judge also asked the prosecutor to assume that the person trying to convince Pence had the“ reasonable man rea ”or guilty mind to be responsible for a crime.

Nichols made no specific mention of Trump, who appointed him to the bank, but the then-president exerted public and private pressure to confirm Joe Biden’s victory in the days leading up to the fateful January 6th record. Trump also enlisted other allies, including attorney John Eastman, to rely on pence.

A Justice Department Criminal Law attorney James Pearce initially appeared to oppose the idea that merely lobbying Pence to deny recognition of the election result was the crime of obstruction or attempting to obstruct official process.

“I don’t see how you get this,” Pearce told the judge.

However, Pearce was quick to add that it could well be a crime for the person turning to Pence to know that the Vice President was constitutionally required to recognize the outcome.

“When that person does that knowing it is not an available argument [and is] Asking the vice president to do something that the person knows is wrong … one of the definitions of “corrupt” is trying to get someone to break a legal obligation, “Pearce said.

Later in the hearing, Miller’s defense attorney Clinton Broden returned to the subject, arguing that the example cited by the judge showed the problem of reading the Disability Act to cover almost any kind of effort to delay almost anything a government official did or a federal government agency was planning to do so.

While judges and prosecutors managed to discuss the issue without explicitly mentioning Trump, the defense attorney was more blunt.

“That worries me, if this is really the government’s position, when former President Trump tries to convince Vice President Pence not to ratify the election when there is evidence that he doesn’t really believe Vice President Pence has that power has “, it could be a violation of the obstruction law, said Broden. “That seems to be the hare trail that we will go through under the government’s reading of the law.”

Trump has publicly claimed that he believed and believes that Pence had the power not to recognize the electoral votes submitted by state officials and that could have refused, which would potentially throw the presidential election into the House of Representatives to be decided.

Eastman, a Conservative law professor and former Justice Department official, prepared legal opinions on these arguments. However, most other lawyers of various political beliefs have ridiculed this claim. Pence and his staff concluded that he did not have such discretion in this process and that it would be dangerous if he did so.

The judicial discussion of Trump’s potential criminal responsibility in the Capitol Riots raised a nagging and uncomfortable question for the Justice Department: is it making serious efforts to investigate whether the former president has committed any crimes related to the January 6th events? .

Internal Justice Department emails released last week in response to a Freedom of Information Act request filed by BuzzFeed showed that officials were attempting to address this delicate issue in the hours and days immediately following January 6.

“We look at all the actors here and everyone who played a role, and if the evidence matches the elements of a crime, they’ll be charged,” Acting US Attorney Michael Sherwin told reporters on a conference call the day after the riot .

Despite this promise, there has been no external evidence in the past 10 months that the Justice Department is actively investigating Trump or those closest to him because of their activities prior to or during the uprising. Sherwin left the department in March after judges criticized some of his comments to the media.

Miller is charged with a variety of criminal offenses, including obstruction, assaulting a federal officer, and threatening a police officer and MP Alexandria Ocasio-Cortez (DN.Y.). Prosecutors say Miller posted a series of calls for violence on social media after taking over the Capitol on Jan. 6. After Ocasio-Cortez pushed for Trump’s impeachment on Twitter, Miller reportedly replied: “Assassinate AOC.”

Miller is just one of more than half a dozen Capitol Riots defendants currently challenging the use of the obstruction display in their cases.

Broden, the defense attorney, said Monday that the government’s interpretation was broad enough that interrupting almost any judge’s activity could amount to a disability and – at least in theory – a 20-year prison sentence.

“There has to be a limit. If someone walks in while the court is having a wedding, is that an official process? ”Broden asked, telling the court to give preference to the accused under a legal doctrine known as“ lenity ”.

Nichols neither ruled on the issue on Monday nor gave a clear indication of where he is likely to comment on the issue other judges are also pondering.

Prosecutors and defense in Miller’s case also argued Monday over allegations that January 6 defendants were being treated inappropriately harshly on political grounds, particularly when compared to those arrested for actions during last year’s riot in Portland, Ore became.

“The Portland rioters have been much more offensive than Mr. Miller is accused of,” Broden said. “I think it’s a concern … for a large part of the public.”

But a Justice Department criminal law attorney David Lieberman said prosecutors had good reason to distinguish between the cases, including the severity of the attack on the Capitol and the fact that the evidence against many of those accused in Portland was not so good available for the Capitol Falls.

“They had officers in full tactical gear at 2 a.m. trying to identify someone in the crowd,” Lieberman said in Portland.

Broden said Monday Miller planned to reject the government’s proposal to resolve the case by pleading guilty to the charges of disability and assaulting a federal official. Prosecutors do not appear to have insisted Miller plead guilty to the alleged threat against Ocasio-Cortez.

Towards the end of the nearly two-hour trial on Monday, Nichols secretly overheard arguments about whether Miller should be released from custody. The judge did not say why the public was excluded from this part of the session.

No date has been set for the case, but Nichols has rescheduled for another hearing on December 21st. He also said he was concerned that Miller and the relatively small portion of the Jan. 6 defendants who are in custody are “under a lot of pressure” because of the delays caused by the pandemic and the huge increase in the number of cases caused by the Uprising in the Capitol.

“I think we need to move this case on as soon as possible,” said the judge.

Kyle Cheney contributed to this report.

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