The Bar for Charging Trump with Obstructing Congress Is Higher Than Many Realize

“Text messages to Trump’s chief of staff Mark Meadows indicate that Trump allies in Congress such as Rep. Jim Jordan (R-Ohio) pushed plans to set aside the election results and subvert the democratic process before Jan. 6. And when the insurrection started, the messages also reveal that members of Congress, Trump’s media allies and his own son pleaded unsuccessfully with Meadows to get the president to call off his supporters.

That evidence — not to mention the earlier revelation of a PowerPoint presentation circulating in the Trump White House about how to block the electoral vote certification — led members of the committee to question whether the president might be in legal jeopardy. Rep. Liz Cheney (R-Wyo.), the vice chair of the committee, gained particular attention for a question she posed that went so far as to paraphrase the language of 18 U.S.C. § 1512, which makes it a felony to attempt to “corruptly obstruct, influence, or impede any official proceeding.”

But while the committee may ultimately uncover sufficient evidence to indict Trump, it does not appear that they have done so thus far. Rather than using the exact language of the statute, she inserted four words that reveal the scope of the committee’s investigation but also suggest that the committee knows it might fall short of the bar for criminal prosecution. “Did Donald Trump, through action or inaction [emphasis added], corruptly seek to obstruct or impede Congress’ official proceeding to count electoral votes?” Cheney asked as she urged colleagues to hold Meadows in contempt of Congress for refusing to be deposed.The key word used by Cheney is “inaction.” Thus far the evidence made public by the committee indicates that in the face of a violent attack on the U.S. Capitol, Trump did nothing. Cheney and others argue that Trump violated his oath of office, in which he swore to “preserve, protect and defend the Constitution,” which requires him to “take care that the laws be faithfully executed.” There can be little dispute that Trump failed to do so. But a president violating his oath of office, in itself, does not constitute a federal crime.

In fact, our criminal laws rarely punish people for not taking action, and with good reason. Our criminal laws were designed to punish people who knowingly engage in wrongdoing, not to punish people who showed mere indifference or inadvertence when others were engaged in wrongdoing.”

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