Could Donald Trump, the former President of the U.S., be charged with a crime for making the then-Vice President Mike Pence cause a denial to the certification of the electoral vote tally?
This question was raised and highly debated on the legality points by Judge Carl Nicholas, District court judge, USA, while hearing one of the hundreds facing trial in the capital riot incident.
The attorneys to both the parties and the presiding judges debated on the law used against the defendants to them liable for the criminal offence of “corruptly” meddling with a federal government official proceeding, and the punishment for this crime extends up to 20 years in prison.
It is a settled principle that this particular law, as mentioned above, is typically applied to matters related to the court, like giving threats to the witnesses in a case, jurors, or to the judges. In the capitol violence case, the charges, under this statute, have been levelled against all the defendants because the Trump biased mob charged their way inside the capitol building after breaking all the lines of defence set up by the police to create hindrance moreover disrupt the electoral vote tally. The question applicability is regarding the issue stated above.
In one of the hearings, the attorney for the defendant, Garret Miller of Richardson, Texas, Nichols, is one the first ones to make this Trump analogy by posing a question to the prosecutor that – can an obstruction be caused by someone who just “called Vice President Pence to seek to have him adjudge the certification in a particular way?” One of the presiding judges also seemed intrigued by this analogy and posed the same question back to the prosecutor and asked him to assume that the said person was trying to persuade Pence and hence consequentially will there be an “appropriate men’s rea,” or guilty mind, which therefore can be made to be responsible for a crime.
Neither the judge nor the defendant’s attorney made any mention of Trump in specific, it is peculiar to mention that it was Trump who appointed Pence to the bench, and the former President was pressurizing Pence both publicly and privately at the time, which was just before the date of the unfortunate incident at the capitol, i.e. January 6—telling Pence to deny to certify the victory of Joe Bide. Trump left no stone unturned and engaged several allies, including attorney John Eastman, to make Pence cave-in.
However, James Pearce, an attorney with the Justice Department Criminal Division, dismissed this analogy initially and called it incredible and said, “I don’t see how that gets you that,” to the judge. But what Pearce also said is that it will qualify to be a crime if the said person who pressurized Pence had this knowledge that the vice-president has this obligation according to the Constitution, to certify and recognize the electoral result. Pearce further said that “If that person does that knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty,”.
Later in one of the hearings, one of the defendant’s attorneys, Clinton Broden, raised the same issue again and cited the judge’s example in the case above.
The judge and the prosecutor were more cautious and did not use the name of Trump; originally but the defence attorney was more explicit and open about using his name.
“That troubles me if that’s the government’s position, that if former President Trump tried to convince Vice President Pence not to certify the election, if there’s evidence that he didn’t believe Vice President Pence had that power,” that could be a violation of the obstruction law, Broden said. “That seems like the rabbit trail we’re going to go down under the government’s reading of the statute.”
Trump has on several occasions openly stated that he had the firm belief that Pence had the authority to deny the electoral vote result. In the end, the house of Representatives will have to intervene to decide the finality of the development of the elections. However, this claim has been a laughing stock amongst the people knowing the law and by the intellectuals having good political acumen. The Justice Department is also uncomfortable that it may have to investigate a former president and find out his alleged connection in the events that unfolded on January 6.
U.S. Attorney Michael Sherwin told the reporters on the day after the riot that “We’re looking at all actors here, and anyone that had a role, and if the evidence fits the elements of a crime, they’re going to be charged”.
Justice Department has been investigating Trump and his close people concerning the alleged connection with the incident, including Miller.
Miller is one amongst the half a dozen defendant in the Capitol riot challenging the use of the obstruction charge in their cases.
“There’s got to be a limit. If somebody comes in as the court is performing a wedding, is that an official proceeding?” Broden asked, urging the court to give the defendant the benefit of any doubt under a legal doctrine known as the rule of ” lenity
Judge Nichols has not ruled on this issue on Monday but is undoubtedly interested in determining the result of this analogy.