- Rep. Liz Cheney has made multiple references to a criminal statute discussing Trump in recent days.
- Cheney raised a law against “corruptly” obstructing or impeding an official congressional proceeding.
- Her comments came days after a judge upheld the use of that statute against January 6 defendants.
Senate Minority Leader Mitch McConnell offered a stern caveat in February after voting to acquit Donald Trump at the conclusion of his second impeachment trial: The former president, McConnell said then, was “still liable for everything he did while he was in office as an ordinary citizen.”
“He didn’t get away with anything yet,” the Kentucky Republican added.
On the other side of the Capitol, another well-known Republican lawmaker is now getting way more specific about the potential legal consequences awaiting Trump over his role in inciting the deadly January 6 attack that halted the official certification of the 2020 presidential election.
In recent days, Rep. Liz Cheney of Wyoming has drawn attention with public remarks that directly addressed Trump’s potential criminal culpability in connection with the Capitol siege.
Cheney, the Republican vice chair of the House committee investigating January 6, called attention to a federal statute making it illegal to obstruct an official proceeding. The daughter of former Vice President Dick Cheney spoke up about Trump’s legal liability as the panel took steps to hold his former White House chief of staff, Mark Meadows, in contempt of Congress for ceasing cooperation with lawmakers’ probe.
“Mr. Meadows’ testimony will bear on a key question in front of this Committee: Did Donald Trump, through action or inaction, corruptly seek to obstruct or impede Congress’s official proceeding to count electoral votes?” Cheney said. “Mr. Meadows’ testimony will inform our legislative judgments on those issues.”
In those remarks, legal experts saw a clear reference to a charge the the Justice Department has already brought against hundreds of January 6 defendants: “corruptly obstructing an official proceeding.” It is the statute that could be relevant for any prosecution of Trump if evidence emerges that he planned or was aware of the violence that unfolded on January 6.
“It all depends on the facts. If the people who stormed the Capitol can be prosecuted for obstructing a congressional proceeding, if he played a role in that, then he’s equally liable — whether it’s instigating it, aiding and abetting it, planning it,” said Randall Eliason, a former federal prosecutor and now a professor at the George Washington University Law School.
“But they have to show he had some kind of role as opposed to: He sees it happen, sits back and enjoys it, but doesn’t do anything. They have to show that he played some role in causing it, not that the riot went out of control and he just gleefully watched it happen,” Eliason added.
Obstruction charge upheld in one Capitol rioter case
Cheney isn’t exactly pulling from thin air with her reference to the federal criminal code. Just days before her most recent remarks, a federal judge in Washington, DC, upheld the Justice Department’s use of the obstruction of congressional proceedings charge in a key January 6 case.
Judge Dabney Friedrich, a Trump appointee on the US District Court for the District of Columbia, rejected arguments from two Capitol riot defendants that Congress’ certification of now-President Joe Biden’s electoral victory wasn’t an “official proceeding” for the purposes of the statute.
The judge also dismissed assertions that the term “corruptly” was unconstitutionally vague in the statute and that the two defendants’ conduct didn’t “obstruct, influence, and impede” the proceedings of January 6.
More evidence needs to emerge
Cheney mentioned the statute Monday after rattling off texts in which Fox News anchors, lawmakers and even the then-president’s eldest son, Donald Trump Jr., expressed alarm to Meadows over the Capitol attack and urged him to persuade Trump to have the angry mob stand down. The texts underscored how, on January 6, Trump allies viewed the sitting president as an authority figure singularly capable of putting an end to an attack that overwhelmed police and left five people dead.
On Twitter, former US attorneys were struck by Cheney’s clear reference to a criminal statute in discussing the House select panel’s interest in Trump.
“They were his to command. Cheney raising the notion that by failing to stop them, Trump impeded Congress (could be a crime),” wrote Joyce Vance, a former US attorney in northern Alabama.
“Wow. @Liz_Cheney going straight to possible criminal culpability by Trump as reason they need Meadows’s testimony. They are not messing around,” wrote Harry Litman, who served in the Obama administration as the top federal prosecutor in western Pennsylvania.
But in an interview, Eliason said the texts recited by Cheney — however damning in the court of public opinion — fall short of the threshold necessary to make a case against Trump.
“The idea that people thought he could stop it, and he didn’t act or act quickly, I don’t think that alone establishes criminal liability for what happened,” said Eliason, who once oversaw the public corruption unit within the federal prosecutor’s office in Washington, DC, which reviews congressional referrals.
At the same time, Eliason acknowledged additional evidence that isn’t yet public could still come out that changes the whole ballgame for the former president. “If there was more suggesting he had more of an active role in encouraging it to happen,” he said, “potentially the charge applies to him just like it applies to anyone who broke in.”