The United States Attorneys Office for the District of Columbia has charged over 200 individuals with a variety of charges stemming from the January 6, 2021 Capitol Breach Cases.
One of the Charges the prosecutor office has brought is 18 U.S.C. § 1512(c)(2) – Obstruct Official Proceeding. This article discusses what the Government must prove to secure a conviction pursuant to 18 U.S.C. § 1512(c)(2).
In order for the Government to prove that individual committed a violation of 18 U.S.C. § 1512(c)(2) Otherwise Obstruct Official Proceeding they must prove two elements:
First, let us define an official proceeding:
According to 18 U.S.C. § 1515, an official proceeding is a civil or criminal proceeding before: US district judge; a US magistrate; a bankruptcy judge; a judge of the US Tax Court; a special trial judge of the Tax Court; a judge of the US Claims Court; or a federal grand jury and a proceeding before Congress and a proceeding before a federal agency or executive department that is authorized by law. The law does not require that the proceeding was taken place or that the Defendant was even aware of the proceedings.
Now Lets Define Obstructing, Influencing, Impeding
Impede is defined as a delay or preventing something from happening. Obstructing is defined as blocking something from happening. Individuals were impeding or obstructing an official proceeding on January 6, 2021. What about the other individuals that were walking in following the crowd? How about the individuals that asked Capitol Police whether they could enter? Would this violate the 1st element according to 18 U.S.C. § 1512(c)(2)? Does mere presence in the building after others have violently entered the building? There are probably questions for a jury to decide.
Acting Corruptly is the element of the crime that I believe the Government will have the hardest time proving for individuals that did not break, destroy, or enter secured off the Capitol areas.
Acting corruptly pursuant to 18 USC 1512(c) means acting “with an improper purpose and to engage in conduct knowingly and dishonestly with the specific intent to subvert, impede or obstruct” an official proceeding (See United States v. Gordon, 710 F.3d 1124, 1151 (10th Cir. 2013)The Government does have to prove corrupt intent rather the Government must prove that the individual acted with an improper purpose, personally or by influencing another. It includes making a false statement, concealing, altering, or destroying documents or information. The Supreme Court in Arthur Andersen LLP v. US., 544 U.S. 696, 705(2005) stated that the term corruptly is associated with “wrongful, immoral, depraved, or evil.” 18 U.S.C. § 1512(c) was added to the code as part of the Sarbanes-Oxley Act of 2002. The Sarbanes-Oxley Act was designed to ensure that accountants and investment firms were not destroying documents to impede official proceedings. Someone acting corruptly is the harder of the two elements for the Government to prove. Proving corruptly would be easy to prove where the individuals broke into the Capitol, broke windows, destroyed property, went into offices, or went into the chamber.
It is rare for the burden to shift to the Defendant in a criminal case. However, pursuant to 18 U.S.C. § 1512(e), a defendant can assert as an affirmative defense that their conduct was lawful and that they only intended “to encourage, induce, or cause the other person to testify truthfully.” The burden on the Defendant to prove this by a preponderance of the evidence.
The best defense is that the Government can not prove that the individual obstructed or impeded an official proceeding. Furthermore, that the Government can not prove that the defendant acted with the specific intent to subvert, impede or obstruct” a proceeding (United States v. Gordon, 710 F.3d 1124, 1151 (10th Cir. 2013); see also United States v. Friske, 640 F.3d 1288, 1291 (11th Cir. 2011)).