Among the opening moves of Donald Trump’s second term is his top prosecutor in the District of Columbia investigating the use of an obstruction charge against Jan. 6 defendants. Providing some context could be helpful ahead of further developments.
In an email obtained by NBC News, interim U.S. Attorney Ed Martin wrote that he wants “all files, documents, notes, emails and other information” about the use of the obstruction charge. “Obviously, the use was a great failure of our office — [Supreme Court] decision — and we need to get to the bottom of it,” Martin wrote to staff.
(My colleague Steve Benen noted that Martin is “a conservative activist who served on the board of a group supporting Jan. 6 criminal defendants and is considered a prominent member of the ‘Stop the Steal’ movement.”)
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So, what’s the deal with this charge, and why is Martin looking into it?
The charge is obstruction of an official proceeding. Federal prosecutors brought it against defendants who allegedly sought to obstruct the congressional certification of Joe Biden’s 2020 election win at the Capitol on Jan. 6, 2021. The high court decision that Martin referred to in his email is apparently last year’s ruling in Fischer v. United States, which narrowed the use of the law by a 6-3 vote, with Trump appointee Amy Coney Barrett writing the dissent siding with the government. Nearly all lower federal court judges sided with the government before the Supreme Court weighed in.
It’s also worth noting then-Attorney General Merrick Garland’s statement reacting to the Fischer ruling, in which he said: “The vast majority of the more than 1,400 defendants charged for their illegal actions on January 6 will not be affected by this decision. There are no cases in which the Department charged a January 6 defendant only with the offense at issue in Fischer.”
So while it was a widely used charge, Jan. 6 prosecutors didn’t entirely depend on it. If they had, then the blanket clemency Trump just ordered for Jan. 6 defendants would not have been possible — there would’ve been nothing left to pardon or commute if the Fischer case made everything go away.
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Of course, Martin’s project should be viewed in light of those Jan. 6 pardons, moves to fire Trump prosecutors and other related actions that have kicked off Trump’s second term. That is, the review could be part of a broader project of both attempting to rewrite Jan. 6 history and punish prosecutors who dared to make certain legal arguments that a divided Supreme Court ultimately disagreed with (over vigorous dissent from a Trump appointee).
And it shouldn’t escape notice that two of Trump’s four charges in his own federal election interference case — which vanished with his political victory — involved that obstruction charge, too. So it’s not only an apparent effort to avenge Trump supporters but also Trump himself. (Even after the Fischer case, there was reason to think that Trump’s obstruction-related charges could have survived legal challenge, but we’ll never know now that his case has been dismissed.)
As with other Trump-era adventures in the justice system, there’s a theoretically positive way to view prosecutorial introspection. The challenge of doing so here, in light of the above context, is that it requires ignoring all notions of hypocrisy, reality and politics. If the point is to interrogate an (in retrospect, in some cases) overbroad use of a criminal law with an eye toward being more cautious going forward in favor of defendants — no matter their political leanings, if any — then that could be beneficial and even laudable. But until we learn otherwise, there’s no reason to think that’s what this is.
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This article was originally published on MSNBC.com
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