Donald Trump doesn’t know Thomas Robertson. But the former president’s fate appears inextricably tied to that of the former Army Ranger, who was convicted last year for his involvement in the Jan. 6, 2021 protest at the U.S. Capitol.
That’s because the prosecutions of Mr. Trump and his supporters, including Mr. Robertson, have often depended on reimagining the law in novel ways.
To advance the narrative that Mr. Trump colluded with Russia, for example, the Department of Justice seized on the little-used Foreign Agents Registration Act to justify probes and wiretaps of Trump allies. In the Georgia election fraud case against Mr. Trump and numerous campaign advisers, Fulton County District Attorney Fani Willis is using a law intended to combat organized crime, the Racketeer Influenced and Corrupt Organization (RICO) Act, in what even her supporters describe as a stretch.
In Washington, D.C., prosecutors are using a financial crimes statute passed by Congress in 2002 in response to the Enron scandal to bring felony charges against hundreds of Jan. 6 defendants, including Mr. Trump and Mr. Robertson. Lawyers for both and for other Jan. 6 defendants argue the law is being misapplied. The controversy could soon wind up before the Supreme Court.
Defense attorneys say the government is using the power of law enforcement to misinterpret, and even weaponize, nebulous language in the legal code.
In three separate motions filed on Oct. 23, Trump’s lawyers repeatedly raised objections based on the “vagueness” factor of the four counts in Special Counsel Jack Smith’s Jan. 6 criminal indictment against Mr. Trump. Those four charges are: conspiracy to defraud the United States, conspiracy to obstruct, conspiracy against rights, and obstruction of an official proceeding.
“President Trump’s alleged conduct — publicly and politically disputing the outcome of the election, attempting to convince Congress to act, and allegedly organizing alternate slates of electors — falls outside the plain language of the charged statutes,” John Lauro, Trump’s lead attorney in the Jan. 6 case, wrote in a motion to dismiss the charges.
One of the key statutes in question is 18 U.S. Code § 1512(c)(2), part of the 2002 Sarbanes-Oxley Act passed by Congress to prevent fraudulent financial reporting by corporations. The statute was meant to close a loophole in other obstruction laws related to the destruction of evidence, but left open to interpretation the terms “corruptly” and “official proceeding” in the following passage—to the point where, defense lawyers claim, it can be used to criminalize political activity. The passage reads:
“(c) Whoever corruptly — / (1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or / (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so, / shall be fined under this title or imprisoned not more than 20 years, or both.”
DOJ’s legal basis rests on the argument that the Joint Session of Congress held on Jan. 6 to debate and certify the 2020 election was an “official proceeding,” as opposed to a ceremonial gathering. Those who interrupted Congress, prompting a six-hour delay, or planned to disrupt it, committed that particular obstruction felony, prosecutors contend.
Smith’s indictment is hardly the first time the DOJ sought to nab Mr. Trump on the obstruction count. It represents the culmination of a years-long effort dating back to 2017, when Special Counsel Robert Mueller investigated Mr. Trump for violating 1512(c)(2) as part of his probe into Russia’s role in the 2016 election.
Mueller concluded that Trump’s behavior in office met the statute’s largely undefined language regarding obstruction. “Section 1512(c)(2) applies to corrupt acts — including by public officials — that frustrate the commencement or conduct of a proceeding, and not just to acts that make evidence unavailable or impair its integrity.”
Mueller, however, did not refer Mr. Trump to the Justice Department on the obstruction count even though he repeatedly suggested the then-president should be investigated accordingly. Attorney General William Barr disagreed with Mueller’s assessment and did not charge Mr. Trump.
But the government’s desire to broadly interpret the statute in Trump-related cases did not end there.
Some of the accused never entered the Capitol or went inside after Congress recessed. Enrique Tarrio, leader of the Proud Boys, was in a Baltimore hotel on Jan. 6 following court orders to stay out of the nation’s capital. Mr. Trump himself never set foot on Capitol Hill that day.
The same cannot be said for Thomas Robertson, a Virginia police sergeant at the time. (He was immediately fired from his job.) The government indicted Mr. Robertson, a former Army Ranger with no criminal record, on six federal crimes including 1512(c)(2). Despite Mr. Robertson’s facing no charge related to assaulting a police officer or vandalizing property—and being inside the building for roughly 20 minutes—U.S. District Court Judge Christopher Cooper revoked Robertson’s bond in July 2021.
Before his April 2022 trial, Mr. Robertson filed a motion to dismiss the charge related to 1512(c)(2). Mr. Robertson argued, as others have in similar dismissal motions, that Congress’ work on Jan. 6 was outside the fundamental scope of the law. “The electoral count is a ceremonial and administrative event that is not an ‘official proceeding’ contemplated in §1512; it is not an adjudicative proceeding involving witness testimony and evidence,” his lawyer wrote.
Further, the courts’ historical definition of “corruptly”—requiring an individual intentionally breaking the law in an effort to “obstruct” something—had been stretched in Robertson’s case to encompass social media posts. Mr. Robertson generally objected to the ill-defined nature of the statute as well as DOJ’s selective use of it.
“[Inconsistent] charging decisions, along with the inherently vague words in the statute … that is the basis for charging these defendants, all show that 18 U.S.C. §1512(c)(2) is unconstitutionally vague.”
The trial judge, appointed by President Barack Obama in 2014, did not agree. Citing similar decisions by eight of his judicial colleagues up to that point, Cooper denied the motion and rejected the defense’s argument that 1512(c)(2) was unconstitutionally vague. Robertson’s “corrupt” intent, Cooper concluded, was demonstrated by social media posts before and on Jan. 6, including Robertson’s online claims that, “CNN and the Left are just mad because we actually attacked the government,” and “IN ONE DAY took the f***** U.S. Capitol.”
That was sufficient for Cooper to doubt Robertson’s motives. “If Robertson had expressed his views only through social media, he almost certainly would not be here. But he also allegedly took action — entering the Capitol without lawful authority in an alleged attempt to impede the Electoral College vote certification. His words remain relevant to his intent and motive for taking those alleged actions.”
Following a four-day trial, a D.C. jury quickly found Roberston guilty on all counts. Mr. Robertson was the second of dozens of Jan. 6 defendants subsequently found guilty at trial on 1512(c)(2) and (and other charges) and he was sentenced to 87 months—more than seven years—in prison.
Prosecutors routinely ask for up to five years for 1512(c)(2) convictions, either by a jury or through plea agreements. In some cases, DOJ successfully asked judges to deny release for defendants simply charged with 1512(c)(2). A judge denied Jacob Chansley’s release based on the obstruction charge; he remained behind bars until he accepted a plea offer nine months later and was then sentenced to 41 months.
Judge Justin Walker, who was appointed by President Trump, wrote that he had a narrower reading of the word “corruptly.” Acting corruptly, Walker wrote, involves the pursuit of “an unlawful benefit” for the individual or for someone else. Nevertheless, he joined Pan’s majority opinion.
In dissenting with his colleagues, another Trump appointee, Judge Gregory Katsas, emphasized 1512(c)(2)’s history as “covering document-shredding and other ways to conceal or destroy evidence.” Further, Katsas illustrated how casting a wide net to cover “corrupt” acts could easily run afoul of the First Amendment and ensnare otherwise legal activity to influence government. The government’s unprecedented use of 1512(c)(2) in Jan. 6 cases could apply to “advocacy, lobbying, and protest” in the future, Katsas wrote.
Katsas seemed to almost mock DOJ’s retooling of a corporate fraud act to encompass unruly protests. “[Section] 1512(c)(2) ... seems an unlikely candidate to extend obstruction law into new realms of political speech.” And in quoting another judge, Katsas joked that every building in Washington would be converted into a prison should DOJ’s current reading of obstruction stand.
A differently configured appellate court—which still includes Justice Pan—reached a similarly split outcome this month in Robertson’s appeal of the 1512(c)(2) conviction.
By Pan and Pillard’s standards, 1512(c)(2) would have applied to hundreds of protesters who illegally remained in Senate office buildings and physically confronted lawmakers during the confirmation hearings for Brett Kavanaugh in 2018. Same for protesters who two weeks ago disrupted a Senate Foreign Relations Committee hearing and unlawfully occupied the Rotunda in the Cannon Office building to protest the Israeli-Hamas war.
In her dissent in the Robertson appeal, Judge Karen Henderson, appointed by George W. Bush, criticized her colleagues’ “eye-popping sweep” of what rises to corrupt conduct. Further, Henderson argued that any unlawful benefit, another factor when considering whether someone acted “corruptly,” must involve some personal or professional gain outside of simply wanting one’s preferred candidate to remain in office.
“None of this evidence comes close to establishing at all — much less beyond a reasonable doubt — that Robertson acted with the intent to obtain an unlawful benefit for himself or another.” Henderson supported vacating Robertson’s conviction and modifying his prison sentence accordingly.
Defense attorneys in the Fischer case recently filed petitions before the Supreme Court to reverse the appellate court’s 2-1 ruling. Robertson’s attorneys are expected to file their own pleadings before the highest court.
Some court observers warn of danger ahead for DOJ, the federal courts, and Special Counsel Smith. Writing for Lawfare, a blog hosted by the Brookings Institute, Roger Parloff described the twin appellate rulings as “fragile” and “precarious.” Parloff, who has covered high-profile trials such as the Proud Boys, noted that Republican-appointed judges by and large rejected the government’s use of 1512(c)(2) while Democratic-appointed judges did not. The DOJ, Parloff concluded, has little to celebrate.
This is the tangled legal and judicial system in the nation’s capital that now awaits Donald Trump: a quick-trigger jury pool deciding the merits of a dubious charge as federal judges widen the utility and interpretation of a law written to close a loophole related to corporate interference in criminal investigations.
Given the potential timing of arguments before the high court this summer and issuance of an opinion, Smith could be handed a devastating blow to this landmark case just as Judge Tanya Chutkan is preparing to sentence Mr. Trump, if convicted, after the March 2024 trial.
